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PC MINS 20071023 App November 13, 01 CITY OF RANCHO PALOS VERDES PLANNING COMMISSION MINUTES REGULAR MEETING OCTOBER 23, 2007 CALL TO ORDER The meeting was called to order by Chairman Gerstner at 7:10 p.m. at the Fred Hesse Community Room, 29301 Hawthorne Boulevard. FLAG SALUTE Commissioner Karp led the assembly in the Pledge of Allegiance. ATTENDANCE Present: Commissioners Karp, Knight, Lewis, Perestam, Ruttenberg, Vice Chairman Perestam, and Chairman Gerstner Absent: None Also present were Director of Planning, Building, and Code Enforcement Rojas, City Attorney Lynch, City Arborist Dave Hayes, and Senior Planner Alvarez. APPROVAL OF AGENDA The Agenda was unanimously approved as presented. COMMUNICATIONS Director Rojas distributed two items of correspondence for Agenda Item No. 1, three letters and the draft Resolution for Agenda Item No. 2, and copies of the draft EIR for the Marymount College project. COMMENTS FROM THE AUDIENCE (regarding non-agenda items) Yo Aelony 3632 Vigilance Drive spoke regarding VRP No. 203 and what has happened since the Planning Commission made their decision on the case. He noted that the Commission's comments about prohibiting foliage to grow above the ridgeline were not included in the Resolution and staff stated it was therefore not enforceable. He asked the Commissioners to review their comments to make it clear to him and the staff what their intentions were and clarify the view and if it should have been included in the Resolution. He felt his neighbors were planting new foliage in retaliation to his filing the View Restoration Permit and are testing the willingness of the City to back up their decision regarding the foliage. Director Rojas explained that this item is not on the Agenda and therefore cannot be discussed and direction cannot be given. He stated that staff is aware of Mr. Aelony's concerns and told Mr. Aelony he would be happy to meet with him and visit the site to better understand the issues. He will then better be able to discuss with him what staff can do and what other avenues can be pursued to deal with this issue. Rae Wyman expressed her opinion regarding the view restoration process and felt it might be necessary for a group to form to look at what type of abuse this Ordinance invites and where the line should be drawn. She felt it was particularly concerned that there was no statue of limitations connected with the Ordinance. Ginette Aelony 3632 Vigilance Drive also spoke regarding VRP No. 203. She stated that problems arose when the trimming date kept changing and she was not able to be home when the trees were finally trimmed. She did not feel the trees were trimmed properly and now there is vegetation growing where vegetation never existed before, and staff seems unable to make the neighbors comply. She stated she would be happy to meet with the Director, but felt that the Planning Commission needed to review the video of the meeting. CONTINUED BUSINESS 1. View Restoration Permit(Case No. VRP2007-00019)• 5335 Rolling Ridge Road Chairman Gerstner recused himself from this item, as he lives within 500 feet of the subject properties, and he left the dais. Director Rojas noted that Vice Chairman Perestam was absent from the last meeting when this item was discussed, and asked him if he had visited the site and reviewed the minutes pertaining to this case. Vice Chairman Perestam stated that he has visited the site and reviewed all of the minutes pertaining to this case. Senior Planner Alvarez presented the staff report, explaining that the item had been continued to allow the foliage owner's arborist the opportunity to perform and produce results from core boring to estimate the age of tree No. 1 and 2. He stated that on August 14 the Planning Commission had voted in favor 4 -1 that all of the mandatory view restoration permit findings could be made for trees 3 through 12. He explained that the report received from the foliage owner's arborist, however it did not report on the core boring samples, but rather the arborist's opinions of the trees located on the property. He noted that the City Arborist was in attendance to address any questions of the Planning Commission. He stated that after receiving all of the information and correspondence from both the foliage owner and applicant, staff has not changed its opinion regarding the trimming recommendations for tree Nos. 3 through 12 and trees Planning Commission Minutes October 23,2007 Page 2 Nos. 1 and 2 are exempt from the View Restoration Ordinance provisions, as staff feels there were view impairing trees at the time the applicant's lot was created. Dave Hayes, the City Arborist, stated that the report submitted by the foliage owner was a very general report on the physiology of the trees. He agreed with Mr. Warner, the arborist who prepared the report, that in a perfect world trees shouldn't be pruned. However, this is a view issue and his recommendations were based upon the minimum action necessary to restore the view, and he stands by what he said. Commissioner Knight asked Mr. Hayes,to comment on Mr. Warner's statement in the report that certain recommendations made do not follow the International Society of Horticulture standards. Mr. Hayes explained that most of his recommendations do follow the established standards, except where the term lacing was recommended. He suggested the word "thinning", the effect would a the same. Commissioner Knight noted that on the trees where lacing was recommended, there is no mention that the lacing may have an adverse affect on the tree. Mr. Hayes stated that any pruning has an adverse affect on a tree, as the tree has to respond to being wounded. He stated that on the tree that lacing was recommended, he noted that there was a comment that staff felt the tree should be removed because the damage may be too great. Commissioner Karp asked if these trees are native to California. Mr. Hayes answered the trees are not native to California. Commissioner Karp asked what the useable life of this type of tree would be. Mr. Hayes felt these trees could live 100 years or more. Commissioner Karp asked what type of fire hazard these trees present to the house. Mr. Hayes explained that he has worked with fuel modification studies for other cities, .and noted that the general recommendation in Los Angeles County is that the foliage be kept at least 10 feet away from the house, and that conifers be kept even farther from the house. Commissioner Karp noted these trees are closer than 10 feet and asked Mr. Hayes his professional opinion regarding their fire danger. Mr. Hayes answered that he was not asked to address the fire hazard issue of these trees in his report, however in his professional opinion these trees may represent a hazard which is an issue the Fire Department would address. Planning commission Minutes October 23,2007 Page 3 Commissioner Ruttenberg asked the City Attorney if the Planning Commission could consider the fire danger of these trees when discussing this application. City Attorney Lynch answered that the fire danger of these trees is not relevant to this application and should not be considered when making a decision. Commissioner Ruttenberg asked Mr. Hayes to comment on the correspondence from Dr. Allman's surveyor regarding the height of tree Nos. 1 and 2. Mr. Hayes explained that the report presented by Dr. Allman used the base elevation of the driveway, which is approximately 66 feet. He noted that the trees are actually farther up the slope at a higher elevation. Commissioner Ruttenberg asked Mr. Hayes if that was enough of a difference to conclude that those two trees were view impairing at the time the lot was created in 1965. Mr. Hayes felt that is enough of a difference to reach that conclusion. Commissioner Tetreault asked Mr. Hayes if it was his opinion that tree Nos. 1 and 2 were possibly view impairing at the time the applicant's lot was created or was it his opinion that the trees most likely were view impairing. Mr. Hayes answered that his opinion was that it is most.probable the trees were view impairing at the time the applicant's lot was created. Commissioner Tetreault asked Mr. Hayes if he had an opinion on the extent of that view impairment. Mr. Hayes answered that he concluded tree No. 1 was impairing the view by 3 feet and tree No. 2 was impairing the view by 8 feet. Commissioner Tetreault asked Mr. Hayes if he had an opinion of the trees impairing the view horizontally. Mr. Hayes estimated that a 3 foot vertical tree would most likely be 3 feet wide, while an 8 foot vertical tree would cause perhaps 8 feet of horizontal impairment. Commissioner Knight stated that one of the pieces of late correspondence is a survey submitted by Dr. Allman which indicates the height of tree No. 1 and tree No. 2 in terms of where the base of the trees are located. He explained that this survey does not correspond with the City Arborist's estimate of the base height, noting that there is a substantial difference, and asked how to approach this survey relative to what the City Arborist's estimate of the base height of the tree. Planning Commission Minutes October 23,2007 Page 4 City Attorney Lynch explained that it is up to the Planning Commission to decide how they wish to weigh any evidence, noting however that the City Arborist does not have a stake in this application one way or the other and.has an independent opinion. Vice Chairman Perestam asked for clarification on the language of pre-existing view blockage, and if the Planning Commission was being asked to determine if there was view impairment when the lot was created, or if there was significant view impairment when the lot was created. City Attorney Lynch explained that the issue of significance does not seem to play a part in this determination, rather the issue is whether or not there was view impairment at the time the lot was created. She added that it is unclear whether it would have to be vertical or horizontal impairment, but rather it is any view impairment if someone bought the lot subject to those trees being there in the view. Commissioner Tetreault asked if there is vertical impairment of the City view by just a couple of feet, can one consider the view of the mountains above through the City lights. City Attorney Lynch stated that in respect to the analysis of the view impairment, one considers multi-component views. Director Rojas clarified that multi-component view analysis is done to analyze whether trees significantly impair the view as opposed to the finding of whether a tree impairs a view at the time the applicant's lot was created, which does not consider significance. City Attorney Lynch affirmed that any tree impairing any view at the time the applicant's lot was created is considered to be exempt. Commissioner Tetreault asked how the City would protect the view in the future should the applicant or future owners construct a new home. City Attorney Lynch stated that the exempt status of tree Nos. 1 and 2 would not be affected by the construction of a new house on the applicant's property. Director Rojas added that staff would perform an analysis of the view from the new viewing area in the described scenario. However, the chances of the viewing area being drastically different than the existing viewing area are unlikely. Commissioner Knight referred to the staff recommendations, noting that for tree No. 4 the City Arborist strongly recommends removal of the tree, however staff was recommending reducing the crown in Condition No. 2. Senior Planner Alvarez explained that staff is recommending reducing the crown of tree No. 4 as it would not harm the tree's health. However, Mr. Hayes opinion is that the Planning commission Minutes October 23,2007 Page 5 result of trimming would leave the tree unsightly. For tree No. 7, the result would be detrimental to the tree. Commissioner Knight referred to tree No. 11, noting that Mr. Hayes recommended work on the tree should only be started after tree Nos. 2 and 10. He asked staff to explain the reasoning for that recommendation. Mr. Hayes explained that tree Nos. 2 and 10 are in the view area and you can't really see what's going on behind them until they have been cleaned up. City Attorney Lynch stated that language should be added to the Resolution that tree Nos. 2 and 10 should be trimmed before starting work on tree No. 11. Commissioner Knight stated that Mr. Warner's report indicated there is a bird's nest in tree No. 3 and asked how this relates to the Migratory Bird Act. Director Rojas stated that staff has checked with the City Biologist who indicated that the Migratory Bird Act states that one is not allowed to take a live nest which contains birds or eggs. Therefore, before the tree is cut it will have to be confirmed that this is not a live nest, and this condition will be added to the Resolution. Vice Chairman Perestam opened the public hearing. Ralph Allman (applicant) stated that the topography map that was included in the package given to Mr. Hayes was not done by his surveyor but was a plat map from years back. He noted that there is a document dated October 9th that the surveyor did, and all of the view is predicated on the height from the living room, which is 86.7 feet. He explained the surveyor shot tree Nos. 1 and 2 from the high side and the low side, and they are approximately 20 feet different between the height of the living room and height where the trees were planted. Using Mr. Hayes measurements of growth, he did not think a tree could be considered view impairing. He disagreed with Mr. Hayes regarding tree No.2, as he did not think the tree is planted on the slope, but rather at the junction of the driveway and the slope. He also noted that he presented a document showing the rainfall during those years in question which averaged approximately 4 inches below normal for that eight year span. He therefore did not think that the trees necessarily were very fast growing, given there was no irrigation in place and the trees had to be hand watered. He then showed a video he made of the trees in question. Mr. Trowbridge (foliage owner) stated his trees were all into the view in 1989 when the Ordinance was passed, and were on the property in 1965 and the argument is whether or not they were view impairing in 1965. He felt that the recommendations by staff regarding his trees seems to be no more than a template, which indicates what is usually done in these cases. He felt that the path of least resistance is to order the trees to be cut according to the template, however he questioned if it is fair if one always follows that template and if one always finds for the view seeker and against the Planning commission Minutes October 23,2007 Page 6 foliage owner. He stated that Mr. Hayes has suggested trimmings that are less drastic than staff's recommendations. He felt that some of Dr. Allman's speakers previously lied to the Planning Commission regarding when the trees were planted, but noted it is hard to prove. He felt the trees were planted before 1957. Mr. Trowbridge did not think Dr. Allman has proved his case by the preponderance of the evidence, and felt that there is evidence that the impairing foliage was there in 1965. He noted that in 1969 he bought the lot for the tall trees, so they must have been very tall only four years earlier in 1965. He stated that a property owner is entitled to shade, privacy, and the enjoyment of his land, and he was asking for these rights. He asked the Commission deny the application and believes photos he submitted show large trees and there is evidence that the trees were view blocking. Commissioner Knight asked Mr. Trowbridge if he was in disagreement with the trimming recommendations for tree Nos. 3 through 12. Mr. Trowbridge answered that the trimming of the trees and the removal of others with the replacement of inadequately sized trees is the total destruction of his yard. He felt this entire issue should have been settled during the mediation sessions, however Dr. Allman withdrew from that and immediately demanded drastic action. He felt that the application should be denied and the parties should be ordered to go back to the informal meetings with the mediator. Commissioner Karp referred to a letter from the arborist, Mr. Warner, in which a reference was made to an agreement made between the property owners regarding the height of the trees. He stated that he has never seen this agreement and asked for clarification regarding this agreement. Mr. Trowbridge explained that this agreement is of a covenant which stated that he was not supposed to let new vegetation grow up above the ridgeline of his home. He stated that the trees that were existing were not covered in that covenant. He stated that covenant was part of his package to the staff and Planning Commission, however the City Attorney has stated that the private agreement is not relevant in the Planning Commission's consideration of the view restoration application. City Attorney Lynch clarified that the document states that the Trowbridges shall not permit any new plants, trees, shrub, or vegetation to be planted or started after the date of this agreement to grow higher than a flat plane formed by a point five feet above the floor line at the north side of the Cox residence which faces the Trowbridge real property, and the top of the Trowbridge house. Any plant, tree, or shrubbery currently existing on the Trowbridge property at this time (1975) shall not be affected by this agreement. She explained again that she did not feel this was an agreement this City could enforce and if the Trowbridges wished to do so, it could be taken to a court of law for interpretation and possible enforcement. Josephine Nizetich stated that she was the interior designer for the Trowbridges. She stated that she visited the home in 1976 or 1977 and was very impressed at that time Planning Commission Minutes October 23,2007 Page 7 with the lot and the beautiful trees on the lot. She explained that at that time she agreed with the Trowbridges to work to bring these large trees into the interior design of the home, and that these trees were large at that time and very much a part of the design of the home. Commissioner Ruttenberg asked Mrs. Nizetich is she had any recollection of the size of tree Nos. 1 and 2 at that time. Mrs. Nizetich answered that those two trees were very large trees at that time, but could not be more specific regarding their height. Mrs. Trowbridge (foliage owner) noted that any new trees planted on her property will most likely have to be brought in by helicopter because of the narrow driveway and extreme slope. She also stated that she was very alarmed by Mrs. Graux's testimony at that last meeting, as on more than one occasion she had been told by Mrs. Graux that she had planted the pine trees on the property. She believes Mrs. Graux planted the trees because there are seven or eight similar trees on Mrs. Graux's property. She noted that looking up and down Rolling Ridge Road one will see many, many pine trees that are at least as tall as the trees on her property. She explained that all of the trees on her property have been topped and trimmed over the years on a rotating system for fire concerns and to keep them from shedding in the pool and around the property. Mr. Allman (in rebuttal) stated that at the last meeting he distributed the original photograph from 1956 which he felt clearly showed that the trees on the Trowbridge property had not yet been planted. He stressed again the neighbor's testimony of the planting and stated that these neighbors were not lying. He stated that the issue is not how beautiful and wonderful the trees are, but rather that there is a view ordinance that was passed by the residents of this City and he would like to see his view restored. He stated that he would like his view restored, not by looking through a bunch of trees or through trees with lowered or raised crowns, but rather a true view restoration. Mr. Trowbridge (in rebuttal) stated that Dr. Allman feels he has the right to have all of the trees cut down in order to restore his view. He explained that Dr. Allman has to prove that there was no view impairment in 1965, however Mr. Trowbridge feels there were two trees at that time that did impair the view. He felt this was an example of someone coming in and sees an opportunity to get a view through a view ordinance at the expense of his neighbor. He felt that if Dr. Allman wanted a panoramic view he should have bought a lot with a panoramic view. He asked again that the formal application be dismissed and sent back to the mediator for discussion. Commissioner Ruttenberg asked Mr. Trowbridge if he was suggesting that he be allowed to let all of the trees grow and the entire application be dismissed just because two trees impaired the view in 1965. Mr. Trowbridge said he is only being technical in the language of the ordinance. Planning commission Minutes October 23,2007 Page 8 Vice Chairman Perestam closed the public hearing. Commissioner Ruttenberg stated that Dr. Allman stated that crown raising is ugly and provides no shade, and asked staff if that was a matter the Planning Commission should consider. He explained that it was his understanding that the consideration was that if there was an option to raise the crown, that is what the foliage owner could elect and if that didn't work he could get a new tree instead. Senior Planner Alvarez answered that the recommendation to raise the crown of a tree is one of the tools the Planning Commission is given by the Guidelines. He explained that in this situation raising the crown is recommended because the height of the tree is well above the protected view. Whether or not raising the crown is an attractive option is not really the main consideration. Commissioner Ruttenberg asked Mr. Hayes his opinion of rainfall during the eight year time span. Mr. Hayes stated that the trees are native to the Mediterranean region and survive and grow well in dry conditions. Commissioner Perestam stated that one of the photographs of the tree provided was taken in 1973 and asked Mr. Hayes if he could estimate from this photograph what the height of the tree might have been in 1965. Mr. Hayes answered that based on that photograph, his original estimate may have been conservative due to the thick diameter of tree No. 2. Commissioner Tetreault asked, based on this photograph and all of the other evidence presented, what he would estimate the difference is between the base of the tree and the pad level of the Trowbridge residence. Senior Planner Alvarez answered that part of the October 23rd staff report included a topography map with five foot contour intervals. He stated that given the location of the tree in reference to the garage there appears to be a five foot elevation difference between the base of the tree and the driveway at the garage. Commissioner Karp stated that he has many conflicting thoughts regarding this issue, but pointed out that when Dr. Allman bought the lot the view was impaired. He questioned why the applicant bought the lot knowing the view was impaired, and questioned if this was view restoration or view enhancement. He was also concerned that, even though the City Attorney advised this couldn't be considered, these trees are a fire hazard. Finally, he was not satisfied as to whether or not there is a personal agreement concerning the trees. He agreed that the City cannot enforce personal agreements, but he did not think the City could ignore or interfere with personal agreements when making a decision about the property. Planning commission Minutes October 23,2007 Page 9 Commissioner Ruttenberg agreed with Commissioner Karp's sentiments, however his directive under the Ordinance doesn't consider those points, and the Planning Commission is bound to follow the Ordinance. Commissioner Lewis and Vice Chairman Perestam agreed with Commissioner Ruttenberg, adding that they also understood the concerns expressed by Commissioner Karp. Commissioner Tetreault began a discussion of Tree Nos. 1 and 2. He noted that quite a bit of evidence has been presented on both sides of the issue, as well as testimony from the City Arborist who is considered a neutral party in this situation. Given that the City Arborist has said it is very probable that trees 1 and 2 were view impairing at the time the applicant's lot was created, he is going to accept that opinion and support staff's recommendation with respect to trees Nos. 1 and 2. He also accepted the City Attorney's interpretation that any view impairment caused by the trees be taken out of the equation. Commissioner Lewis disagreed. He stated that he listened to the testimony of the City Arborist, however he also heard testimony from people who lived in the neighborhood many years ago who could remember the trees being planted. He explained that he measured the City Arborist's testimony against those who were actually there and felt the applicant has met his burden to establish those trees were not view impairing when the lot was created. Commissioner Knight stated that in reviewing the testimony brought before the Planning Commission he concurred with the City Arborist that tree Nos. 1 and 2 were view impairing at the time the applicant's lot was created. He noted that the degree in which the tree Nos. 1 and 2 were view impairing is not to be taken into consideration. Commissioner Ruttenberg concurred with Commissioners Tetreault and Knight. He stated that the burden of proof is on the applicant and it has been very close, however he had to go with the testimony of the City Arborist, as he is a neutral party in this situation. Vice Chairman Perestam was undecided as to whether or not tree No. 1 was view impairing at the time of the lot creation, but did believe tree No. 2 was view impairing at the time of lot creation and should not be part of the process. Commissioner Tetreault moved to adopt staff's findings regarding tree Nos. 1 and 2 that the trees were view impairing at the time the applicant's lot was created and therefore should be excluded from the View Restoration application, seconded by Commissioner Knight. The motion passed, (3-2-1) with Commissioner Lewis and Vice Chairman Perestam dissenting and Commissioner Karp abstaining. Planning Commission Minutes October 23,2007 Page 10 Commissioner Knight referred to the draft Resolution and suggested modifying the language in Section 7 for clarity to say "The area that presently constitutes the applicant's lot, was part of a larger lot created in 1948 which incorporated the current foliage owner's lot." City Attorney Lynch agreed with the modified language. Commissioner Knight moved to adopt staff's recommendation as modified to the language in Section 7; additional language in Condition No. 7 that tree No. 10 be trimmed after tree No. 7; the nest in tree No. 3 will be checked for an active nest by a qualified biologist and if there is an active nest the tree will only occur outside of the active nesting season; the conditions for tree No. 4 and No. 5 be separated because of the different kind trimming involved for those two trees; at the suggestion of the City Attorney, to add language at the end of Section 7 which states that tree Nos. 1 and 2 did exist as view impairing trees at the time the lot from which the view is taken was created; and also at the suggestion of the City Attorney to add a Section 12 which states that this decision shall not intended to affect and is not based upon an interpretation of the covenant that memorialized the agreement between Mrs. Cox and Mr. and Mrs. Trowbridge that was recorded in 1975, seconded by Commissioner Ruttenberg. Director Rojas suggested that because of the many changes made, that a Resolution be brought back to the Commission on the Consent Calendar for approval at the next meeting. The motion was approved, (5-1) with Commissioner Lewis dissenting. The Resolution will be presented on the Consent Calendar of the November 13, 2007 meeting. PUBLIC HEARINGS 2. View Restoration Permit (Case No. VRP2006-00007): 3103, 3109, 3117, 3125, 3131, 3139 Dianora and 3102 Corinna Chairman Gerstner returned to the dais. Commissioner Ruttenberg and Vice Chairman Perestam recused themselves from hearing this item as they both live in close proximity to the project. Both Commissioners left the dais. The remaining Commissioners stated they had visited the site and could therefore participate in the public hearing. Senior Planner Alvarez presented the staff report. He displayed an aerial photograph to show how the foliage owner's property relates to the applicants' properties. He reviewed the different trees found on the property, noting that staff has identified three mature Eucalyptus trees (tree Nos. 19 through 21) that they believe were view impairing at the time the lots were created and are therefore exempt from the application. He Planning Commission Minutes October 23,2007 Page 11 discussed the trees on the property, identifying the trees in the application and how these trees impair the view from the different applicants' properties. He noted that there are other trees on the property that are view impairing, however the foliage owner and applicants are still in negotiation regarding these trees and they are currently not part of this application. He distributed a draft Resolution to the Planning Commission. Commissioner Tetreault disclosed that he knows one of the applicants, Ava Shepard, through her work on the Traffic Safety Commission. However, he did not think this would impair his ability to be impartial. Similarly, his wife's family is friends with the Liehr family, but he did not think this would impair his ability to be impartial. Commissioner Tetreault asked staff if tree Nos. 19 through 21, which in staffs opinion were view impairing at the time the lot was created, were view impairing to all seven applicants. Senior Planner Alvarez answered that, given the lower elevations of the applicants on Dianora Drive and the one applicant on Corinna Drive, with a tree level height of 33 feet staff believes the trees were view impairing from all seven applicants' view areas. He added that the questionable property was Mrs. Hanlan's property because it is higher than the others. He explained that staff used a laser measuring device to determine where 33 feet was in relationship to the view, and staff made the determination that the tree Nos. 19 through 21 were impairing the view at the time the Hanlan lot was created. Commissioner Knight stated that on some of the properties in this application the Planning Commission has made a previous decision in,terms of determining the viewing area. He asked in regards to the case of the Hillinger property at 3131 Dianora Drive if the master bedroom was included in the determination of the viewing area. Senior Planner Alvarez answered that the master bedroom was not included as a viewing area as part of this application and the previous application. City Attorney Lynch added that in reviewing the previous Resolution there is no indication that Mr. Hillinger objected to the determination of viewing area that was in that Resolution. Commissioner Knight stated that some of the other applicants have the living room, .dining room, and master bedroom included in their viewing areas, and asked if it would be possible to add a master bedroom to Mr. Hillinger's viewing area. City Attorney Lynch answered that the viewing areas were set by the prior decision. Commissioner Knight explained that the particular trees being addressed in this application may not be viewable from the living room and dining room of Mr. Hillinger's home, however they may be view impairing from the master bedroom. Planning commission Minutes October 23,2007 Page 12 City Attorney Lynch stated that the Planning Commission is bound by the previous decision in terms of the viewing area, unless that viewing area was contested at the time the decision was made. However, there is no indication that Mr. Hillinger contested the decision at the time. Commissioner Lewis disclosed that he has worked with one of the applicants, Ava Shepard, on the Traffic Safety Commission however he did not think that would affect his ability to be fair and impartial in this matter. Secondly, he noted that in the late correspondence that was distributed there is a conditional request for a continuance made by the applicant. He explained that the request asked that other foliage owners that were a part of this application be added back into the application, and in doing so requested a waiver of the additional fees. If the fee waiver is not possible, they were asking for a continuance of the public hearing until proper public notification and staff reports are prepared. He explained that it is his preference that when the Planning Commission deliberate on these matters all of the testimony and staff report be presented on the same evening, and if there is going to be a continuance for the other foliage owner he requested it be done at this point. Director Rojas stated that the Planning Commission does not have the authority to waive fees, only the City Council can waive fees. Chairman Gerstner opened the public hearing to allow Mrs. Shepard to speak only to the matter of the requested fee waiver and continuance. Ava Shepard 3117 Dianora Drive explained that in regards to the request, it was thought there would be successful agreements with the other foliage owner, however it is unknown at this time if there will be an agreement. She understood now that the Planning Commission cannot waive the fees, and that she would have to go before the City Council at a later date to request this waiver. She questioned what will happen with the additional foliage owners and if they would have to submit a separate application, even though they were part of this original application. She asked staff how to move forward if the negotiations fail. Director Rojas explained that if the applicants want a decision by the Planning Commission on this foliage, and then want to come back for a decision for other foliage on other properties, it requires a different application which requires a new set of fees since staff is doing a new analysis. The alternative would be a continuance to amend the application to include the other foliage owners. Mrs. Shepard felt that was penalizing the applicants, since they were on the original application but at the last minute were taken off in hopes of working out an agreement through mediation. Commissioner Lewis asked staff if the application could proceed with a new fee and the applicant's request a waiver retroactively through the City Council. Planning Commission Minutes October 23,2007 Page 13 City Attorney Lynch answered that requesting a fee waiver retroactively is something that has gone before the City Council in the past. Chairman Gerstner asked Mrs. Shepard if she would like to have this matter continued or if she would prefer the Planning Commission hear this item tonight. Mrs. Shepard answered that since everyone is at the meeting, she would prefer to go forward with the hearing, however she would have to check with the other applicants before answering. While Mrs. Shepard met with the other applicants, the Planning Commission unanimously agreed to suspend discussion on this item and hear other Agenda items. NEW BUSINESS 4. General Plan consistency finding (Case No. ZON2007-00430): 3901 Crest Road Director Rojas presented a brief staff report, explaining a consistency finding,must be made that the purchase of the property is consistent with the General Plan. He stated that staff feels the purchase is consistent with the General Plan and was recommending the Planning Commission find that the purchase of the property is consistent with the General Plan. Commissioner Karp moved to adopt P.C. Resolution 2007-62 thereby finding the City's purchase of the East Crest Road lot consistent with the General Plan, as recommended by staff, seconded by Commissioner Knight. Approved, (5-0). PUBLIC HEARINGS (cont) 3. Height Variation and Site Plan Review (Case No. ZON2007-00130): 3667 Greve Drive Director Rojas presented the staff report, giving a brief description of the project. He stated that staff has assessed the project and determined it will not significantly impair a view and will be compatible with the immediate neighborhood. He stated no comments have been received and there are no speakers on the item, and therefore staff was recommending approval of the project, as conditioned in the staff report. Commissioner Knight moved to adopt P.C. Resolution No. 2007-63 thereby conditionally approving the requested Height Variation and Site Plan Review as recommended by staff, seconded by Commissioner Tetreault. Approved, (5-0). 2. View Restoration Permit (Case No. VRP2006-00007): 3103, 3109, 3117, 3125, 3131, 3139 Dianora and 3102 Corinna (continued) Planning Commission Minutes October 23,2007 Page 14 Chairman Gerstner asked Mrs. Shepard if her preference was to continue the meeting so that the other foliage owners can be involved or proceed with the current foliage owners. Mrs. Shepard stated that since all of her co-applicants are in attendance she felt the public hearing should proceed but stated for the record that it would be unfair to be charged additional fees for a new application request, since the other foliage owners were pulled from the application at the recommendation of staff and the city mediator. Chairman Gerstner closed the public hearing. There being no questions to the staff, Chairman Gerstner opened the public hearing. Chuck Hillinger began by asking why staff didn't look at the view from his master bedroom. He stated that when he and his wife bought their home 45 years ago there were no trees that obstructed the view. Commissioner Knight asked Mr. Hillinger when he bought his home. Mr. Hillinger answered that he bought the home in 1962. Barbara Hanlon-Keller stated that she is the original owner of 3139 Dianora Drive. She disagreed with staffs findings and recommendations relating to trees 19, 20, and 21. She stated that her lot had an unobstructed view when.she first bought it and built her house. Ava Shepard stated that she sees view from the left to the right of the photograph. Therefore, if staff is saying that the trees were most likely 33 feet in height, then there is still no view obstruction in that 1965 photograph. She questioned how staff could determine there was view obstruction. She stated that when these lots were developed they had unobstructed views, and that there is nobody better to attest to that than the people who had purchased these undeveloped lots. She felt that even photos taken in later years confirm the current height represents 40 plus years of growth. She explained the 1989 photographs to the Commission, as well as the 1960's and the 1970's photos taken from the Hanlon property. She asked that the Planning .Commission restore the views. Hal White 3147 Dianora Drive stated that he is not an applicant because from his house you cannot see the trees in question, only when you step out into the yard. He stated he is one of the original owners and can verify when he moved into his home in August 1962 he had an unobstructed view, and on a clear day he could see from downtown Los Angeles down to Newport Beach. Karl Liehr 3067 Crest Road stated that he appreciates residents wanting their view and he appreciates having trees. He felt that the proper solution is a combination of both Planning commission Minutes October 23,2007 Page 15 view and trees. He explained that 10 years ago the Petersons asked that some of the trees on his property be trimmed, which he did without any problem. He explained that the house was built in 1952 and the trees give the house natural shade and cooling. He stated that you can see the Eucalyptus trees in the aerial photographs when the house was built in 1952. He explained that approximately two years ago Mrs. Shepard and Mrs. Peterson came to his property to discuss the trees and view restoration, and he felt that their solution was to cut down all of the trees and replace them with hedges. He stated that there was no discussion possible between the applicants and himself, therefore mediation with the City began. He stated that the problems came in the discussions on who was to pay for the current and future trimming of the trees. He asked that the Planning Commission deny the view restoration request. He stated that the request is based on a 1962 photograph, and in showing his colleagues who are experts in aerial photography, they did not think it was at all possible to determine tree location and heights from this 1962 photograph. He showed a 1952 aerial photograph which he felt shows that there were already trees on the property. He stated that today he cut down one of the Aleppo pine trees and took pictures of the growth rings. He explained that there are about 60 growth rings in the stump, which he felt places the planting of the pine trees at a date of 1947. Therefore in 1962 those pine trees had been growing for 15 years, and at 2 to 3 feet a year, that would place them at 45 feet in height, which means view impairment for those on Dianora Drive. He also felt that the Eucalyptus trees on his property have been growing for 100 years. Commissioner Tetreault asked Mr. Liehr why he thought the Eucalyptus trees are 100 years old. Mr. Liehr answered that someone came on to his property and cut a Eucalyptus tree down and the stump ring shows there are approximately 100 years of growth rings on the tree. He stated that Mr. Hayes has seen the rings. Commissioner Knight asked Mr. Hayes if he had seen the tree and verified that there were 100 years of growth on the tree rings. Mr. Hayes clarified that Mr. Liehr showed him a photograph of tree rings and he counted the rings on the photograph. He was not able to confirm that he had seen the stump on the property. William Scar 3154 Deluna Drive stated that he too has these trees blocking his view, and even more so since his lot is at a lower elevation than the Deluna Drive lots. He supported the applicants because that would also improve his view, and asked that the trees in question be trimmed to at least the roof top levels. Mr. Hillinger (in rebuttal) stated that he and the other applicants have agreed to pay for the trees to be trimmed, but per the Ordinance, he understands that they are not responsible for the yearly maintenance and upkeep of these trees. Planning commission Minutes October 23,2007 Page 16 Ava Shepard (in rebuttal) did not think the Eucalyptus trees were 100 years old and that staff had shown aerial photographs to prove there were no trees in place in 1945. She also disputed Mr. Liehr's claim that there was an agreement that his trees would be maintained by the applicants. She felt there were quite a few discrepancies in Mr. Liehr's testimony regarding the dates the home was built and then later the trees were planted. She discussed the recent memo she wrote to the Planning Commission contesting the viewing areas on Dianora Drive. She noted that the homes are all the same "L" shape model and have the same layout, and therefore should have the same viewing areas. She noted that they are not contesting the actual viewing areas they want to now establish, but rather they felt there are typographical errors that were made on the previous Resolution and that any errors in viewing areas should be corrected before this decision is made. Mr. Liehr (in rebuttal) did not understand how staff established the view line on the photographs and why he should have to cut down trees that were already view impairing when the lots on Dianora Drive were created. Chairman Gerstner closed the public hearing. Commissioner Knight asked staff to comment on Mrs. Shepards' memo regarding the viewing area determination. Senior Planner Alvarez explained that there can be language clarifications where staff is calling a family room a living room, but in terms of staff's position regarding Mr. Hillinger's property, the previous decision and Resolution called for a view taken from the dining room and living room, and staff is not recommending that be changed. He noted that the language in the Guidelines states that if there is a previous decision which established a viewing area, the viewing area does not change for a new application unless that viewing area was challenged during the original application. He noted that the viewing area was not challenged in the previous application. Commissioner Lewis referenced circle page 92 of the staff report and the black and white photograph on that page. He asked staff if they knew where on the property in relation to the house or viewing area that the picture was taken. Senior Planner Alvarez answered that it appears the picture was taken from Mrs. Hanlon's property at a time when Mr. Hillinger's property had not been fully developed. He referenced certain bench marks, such as the post of the existing chain link fence. Based on the reference points and what the view appears to be today, staff doesn't believe that the photograph fully encompasses the entire view. Commissioner Lewis asked staff if the foliage shown in the picture could be a bush or ground cover. Planning Commission Minutes October 23,2007 Page 17 Senior Planner Alvarez answered that believes there is ground cover located at the edge of the slope, and the foliage shown in the photograph beyond the ground cover appears to be a tree. Commissioner Knight asked staff if the City Arborist agrees with staff's determination of the age of the Eucalyptus trees. Senior Planner Alvarez stated that he consulted with Mr. Hayes and they both agreed on an approximate growth rate for Eucalyptus trees. Commissioner Knight asked staff if Mr. Hayes agrees that the Eucalyptus trees were view impairing at the time the lots were created. Mr. Alvarez answered that he did not get into specifics with Mr. Hayes on what constitutes view impacts. He stated that the discussion was in reference to the age of the trees and their growth patterns. Mr. Hayes stated that his only site visit was with the mediator to give a general assessment for certain trees. Commissioner Knight asked Mr. Hayes what his determination of the growth rate of the Eucalyptus trees on the property are. Mr. Hayes stated that he was able to determine that the Eucalyptus trees were most likely not more than 60 years old. He stated he can go back to the property to look at the trees and stump rings to be sure. He added that these Eucalyptus trees are called "Blue Gum" that grows very quickly, and the size of the trees on the property indicates that they are fairly old. Commissioner Knight stated that he agreed with the staff report that tree No. 19, 20, and 21 were view impairing at the time the lots on Dianora Drive were created. Regarding the Hillinger property, he felt it was somewhat unfair that he not be treated the same as the others with the same "L" shaped property in the sense that his view was not being assessed from the master bedroom. However, he understood that the viewing areas were determined from a previous application and did not include the master bedroom. City Attorney Lynch read from the previous Resolution which stated that the viewing area from 3139 Deluna Drive was from both the living room and the dining room. She also noted that the same Resolution does mention that the applicant's views from 3125 and 3139 Deluna Drive are taken from the dining room and master bedroom. Therefore, bedrooms were called out in only some of the homes on this previous application. Chairman Gerstner discussed the viewing areas, noting that some of the Planning Commissioners felt that it is unfair that Mr. Hillinger's viewing area does not include the Planning Commission Minutes October 23,2007 Page 18 view from the master bedroom, however according to the Code the viewing area was established by the previous Resolution. He asked the Planning Commissioners if they all agreed to the viewing area as specified in the Resolution. All of the Planning Commissioners agreed to the viewing area as specified in the current Resolution. Chairman Gerstner then discussed the Eucalyptus trees and their exclusion from the permit, and asked for input from the Commission. Commissioner Lewis stated that he was not convinced of staff's assessment of the 1961 photo on circle page 92 of the staff report, however that photograph did convince him that tree Nos. 19, 20, and 21 were view impairing at the time all the applicants' lots were created. He therefore agreed with staff's recommendation with respect to tree Nos. 19, 20, and 21. Commissioner Tetreault stated that he was unable to tell from the aerial photographs whether or not there were trees on the property and how big they were at any given time. He noted, however, that the foliage owner gave a picture to the City Arborist of one of the trees on his property that had been cut down, and the City Arborist determined from that photograph that the tree was quite old. He noted that there is no way to verify what tree was in the photograph, but he did not feel the foliage owner had any reason to misrepresent the information to the City Arborist. He felt that given all of the information presented in the staff report, that the Eucalyptus trees were probably present and view impairing when the lots were created.. He stated, however, that given it is nearly midnight and this is a very complex case, his thinking was not as clear as it could be to make such an important decision on these trees. Commissioner Karp felt it would be very helpful if staff created some type of matrix showing which trees and which views apply to which lots. Commissioner Lewis requested staff bring, if available, the original black and white photograph that is shown on circle page 92 of the staff report. Commissioner Knight requested a written opinion from the City Arborist regarding the age of tree Nos. 19, 20, and 21. Director Rojas noted that December 11th is the next available Planning Commission meeting. Commissioner Knight moved to continue the public hearing to the Planning Commission meeting of December 11, 2007 with the direction to staff to provide additional information requested, seconded by Commissioner Lewis. Approved, (5-0). Planning Commission Minutes October 23,2007 Page 19 NEW BUSINESS (cont) 5. Availability of a complete electronic Planning Commission agenda Per the Planning Commission rules, this item was automatically continued to the November 13, 2007 meeting due to the lateness of the hour. APPROVAL OF MINUTES 6. Minutes of September 11, 2007 . This item was automatically continued to the November 13, 2007 meeting due to the lateness of the hour. ITEMS TO BE PLACED ON FUTURE AGENDAS 7. Pre-Agenda for the meeting of November 13, 2007 This item was not heard due to the lateness of the hour. ADJOURNMENT The meeting was adjourned at 12:12 a.m. Planning Commission Minutes October 23,2007 Page 20