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VRC MINS 19940915 ' 7 411 111 APPROVED 11/3/94 MINUTES VIEW RESTORATION COMMISSION CITY OF RANCHO PALOS VERDES September 15, 1994 AGENDA I: CALL TO ORDER The meeting was called to order at 7: 00 PM by Chairman Clark at Hesse Community Park, 29301 Hawthorne Boulevard, Rancho Palos Verdes. AGENDA II: ROLL CALL PRESENT: Commissioners Boudreau, Eastwood, Goern, Green, Sweetnam, Weisz, Vice Chairman Cartwright and Chairman Clark. ABSENT: Commissioners Black, Scala. Also present were City Attorney Carol Lynch, Planning Administrator Carolynn Petru and Recording Secretary Helena Eudave. Chairman Clark greeted City Attorney Lynch and thanked her for attending the meeting of the Commission. AGENDA III: FLAG SALUTE The flag salute was led by City Attorney Carol Lynch. AGENDA IV: Communications Chairman Clark asked Planning Administrator Petru, if any late correspondence had been received. She indicated that there had been no additional communications received. He then asked the Commissioners for any items of late correspondence. None of the Commissioners indicated that they had received any correspondence. AGENDA V: Consent Calendar 1. Minutes of August 4, 1994 Chairman Clark asked for comments on the Minutes of August 4 , 1994. It wad pointed out that on Page 3, at the bottom of the second paragraph, there was a typo concerning the word "concept" . On page 5, Chairman Clark stated that the first sentence of the second paragraph was unclear to him. Upon conferring with Staff, it was determined that the word "to" was missing before the word "referred" . In the same paragraph Chairman Clark referred to the sentence starting, "In September of 1993 . . . " and Staff agreed with him that the inclusion of the phrase "that the use of specialists. . . ", would better clarify the meaning of the sentence. a 111 410 2 . Minutes of August 18, 1994 Chairman Clark asked for comments on this set of Minutes. It was pointed out that on Page 4, in the middle of the third paragraph, the word "sight inspection" should be changed to "site inspection" . Commissioner Sweetnam moved to accept the Minutes of both meetings, as amended. Seconded by Vice Chairman Cartwright and passed unanimously, (8-0) . AGENDA VI: Discussion of Draft Guidelines Chairman Clark reminded the members that since April 1994, the Commission has been engaged in a comprehensive review of the View Restoration Permit Guidelines. This review has included issues that have come to the attention of the Staff and City Attorney as part of the previous View Restoration Permit process, as well as issues that the City Council identified at previous joint workshops with the Commission, as recently as June of this year. He indicated that it was his hope to finalize the recommended changes to the Guidelines and forward them to the City Council for consideration by the end of September. Chairman Clark went on to indicate that there were several outstanding issues which, after discussion with the City Attorney, the Commission should decide on a final position to recommend to the Council. Chairman Clark then asked Staff how they would propose to proceed. With the consent of Staff, City Attorney Lynch stated that she had gone through the Guidelines before the meeting, noted several areas where the Commission had some particular concerns and that she would like to touch on those briefly. With regards to the adoption of the Minutes from the Joint Workshop with the City Council, she suggested that the Commission review the draft minutes first, make any recommended changes and then forward their suggestions to the Council for their consideration as part of taking final action on the minutes. Chairman Clark agreed, observing that it would allow both parties to have some input on the content of the minutes. Planning Administrator Petru stated that she had checked with the City Clerk's office regarding the status of the Joint Workshop Minutes and learned that they had not yet been presented to the City Council. Therefore, there was the opportunity to bring the draft minutes back to the Commission for comments before they are adopted by the City Council. City Attorney Lynch then addressed the issue of whether or not a recorded Covenant to Protect Views could be rescinded, in the event that the City decided not to go forward in that particular process. View Restoration Meeting September 15, 1994 Page 2 110 411 She indicated that it would be possible for the City Council to simply execute a Quit Claim, which would be recorded with the Recorder's office and would erase the Covenant. City Attorney Lynch then turned to the issue of a single or "best and most important" viewing area, versus multiple viewing areas. In her opinion, the existing Ordinance supports the determination of a single viewing. She indicated that she had spoken to Steve Dorsey on this subject, who was the City Attorney that assisted in the drafting of Proposition "M", and that he shared her opinion that the original intent of the Ordinance was to protect a single, "best and most important viewing area" for each view property in the City. In addition, Ms. Lynch was able to find a confidential memorandum that was written in 1990 regarding this issue. She distributed copies to the Commission, with the proviso that the document would remain confidential. The City Attorney went on to say that the most defensible decision of the Commission would be those where only one protected viewing area, which could be either inside or outside of the residence, was established for each property. Chairman Clark noted that the Commission was currently reviewing the version of the Draft Guidelines dated September 15, 1994. Commissioner Sweetnam asked if the issue the Commission had been working would be incorporated into the language in the Ordinance. Planning Administrator Petru responded that the changes suggested through the joint sub-committee with the Planning Commission, which was held earlier that year, had already been incorporated into the Draft Development Code Revisions which were still being reviewed by the Planning Commission. However, she indicated that there would still be an opportunity for the View Restoration Commission to suggest more revisions to the Ordinance in the future. Chairman Clark stated that the View Restoration Commission has jurisdiction over portions of the Ordinance that deal with the vegetation, rather than the Planning Commission, and that this authority was clarified with the City Council in 1991. Staff clarified that the changes made by the Planning Commission were based on the joint sub-committee meeting and involve sections of the Ordinance which are used by both Commissions. Therefore, the Planning Commission is not recommending any changes to the portions which are the jurisdiction of the View Restoration Commission. There was a lengthy discussion between Chairman Clark, City Attorney Lynch, Commissioner Sweetnam and Planning Administrator Petru about incorporating the language in the revised Guidelines into the Ordinance before the Development Code Revisions are View Restoration Meeting September 15, 1994 Page 3 111 111 presented to the City Council. Staff indicated that a public hearing process would be required in order to consider changes to the Development Code, which was not the case for the revision to the Guidelines which the Commission was presently reviewing. Chairman Clark asked Staff if the Planning Commission was proposing any changes to the View Restoration portion of the Ordinance and Ms. Petru responded that, to her recollection, the only changes pertinent to the View Restoration Commission involved the definition of "viewing area" . Chairman Clark felt that the Commission should review the View Preservation and Restoration Ordinance at this time and forward their comments to the City Council concurrently with those changes suggested by the Planning Commission. City Attorney Lynch agreed with Chairman Clark, saying that changes to the Guidelines should not precede changes to the Ordinance. Otherwise, the Guidelines may need to be revised immediately in order to be consistent with the revised language of the Ordinance. Chairman Clark then suggested that the Commission go through the latest draft of the View Restoration Permit Guidelines page by page and reminded the members that the underlined text indicated language that had been added by the Staff following the last meeting. PAGE 1: Commissioner Weisz pointed out that, in the first line of the second paragraph, the word "is" should be inserted after "Ordinance" . In the same paragraph, the next to the last line should be modified to read "the rights of the residential. . . " . He then proceeded to the last sentence of the third paragraph, which he felt should read, " . . .the decision. . . " and City Attorney Lynch suggested eliminating the word "However" at the beginning of the sentence. Commissioner Weisz agreed and went on to say that the sentence implies that appeals heard by the City Council would be "de novo" hearings, when in fact the Council could rule only on the procedural aspects of the Commission's decisions. City Attorney Lynch agreed with Commissioner Weisz that the Council could not consider appeals as "de novo" hearings, but clarified that the Council's jurisdiction can be broader than just reviewing procedural matters. If the City Council remands a case back to the Commission for reconsideration, the Ordinance requires the Council to provide specific direction with regards to those areas where the Council felt that the Commission was not properly interpreting or applying the provisions of the Ordinance. Staff agreed to clarify the language of this section. PAGE 2 : Commissioner Sweetnam stated that in Section B, rather than dealing with the specific definition of "viewing area" , he felt that the Commission should discuss their interpretation that the Ordinance allows for multiple viewing areas and solidify their arguments in favor of this position for presentation to the City Council. 111 411 Chairman Clark agreed, and added that single versus multiple viewing areas has been a controversial topic since the inception of the Ordinance. He went on to suggest that some of the original members of the Commission should form 4 subcommittee and review how this subject was addressed when the Ordinance was first adopted and the original Guidelines were prepared in order to reconstruct how the issue was dealt with at that time. Commissioner Sweetnam explained, as a co-author of the Ordinance and an original member of the Commission, he felt that the original intent of Proposition M was to protect "view lots", regardless of whether or not they were vacant or were developed with a residence. The original Commission took the position that the view could be taken from the entire buildable portion of the lot, excluding the required setback areas or any unbuildable sloping areas. In addition, the view could extend in any horizontal direction, up to 360 degrees, from any area on the building pad. Commissioner Sweetnam felt that this was still the Commission's basic position. Further, Commissioner Sweetnam pointed out that the concept of allowing for multiple viewing areas was included in the original Guidelines that were adopted by the City Council in 1990. Mr. Sweetnam stated that he did not remember any disagreement from the City Attorney's office on this issue at that time. City Attorney Lynch responded that, although she was not the City's Attorney at the time the Guidelines were adopted, in light of the memorandum she had found from the previous City Attorney (Steve Dorsey) which expressed concern over the concept of multiple viewing areas, she felt that the City Attorney's office has consistently advocated single viewing areas. However, she went on to say that the City Attorney's job is to only offer advice and that frequently clients decide to take a different action. Chairman Clark asked Ms. Lynch if the 1990 memorandum still represented the City Attorney office's position regarding the issue of "viewing area" . Attorney Lynch indicated that this was the case. Chairman Clark went on to say that it was his understanding that City Attorney's opinion hinged on the interpretation and reliance upon the specific language of "best and most important view" that is included in the Ordinance. Attorney Lynch agreed and said that she had reviewed the Ordinance to determine if the term "viewing area" had been used consistently throughout the document and that it had been used consistently as a singular term. Commissioner Green asked if the "viewing area" meant, in fact, a "viewing point. " Attorney Lynch answered that, in her opinion, a single viewing area did not necessarily mean one fixed point, but could include an entire room from which views are available. However, when there is more than one room from which views area available, the City and landowner must select the one of the rooms to be "the best and most important viewing area" from which the City will protect the view from impairment by structures and foliage. 111 Commissioner Sweetnam expressed the idea that "viewing area" referred to a single plane or elevation from where the view can be taken. On a lot which has more than one pad elevation, for example with the house built on an upper pad and a pool built on a lower pad, the City and landowner must choose which pad elevation shall be designated as the protected "viewing area" . City Attorney Lynch said that she could now see how the differing opinions on single versus multiple viewing areas came about. She felt that the Code supported protecting the entire building pad area as a single viewing area for a vacant lot, but felt that once the house has been constructed and different rooms created that only one room could be designated as the "best and most important viewing area. However, she could see the Commission's argument that even if a residence is built on a view lot, the segmentation of the view should not effect the ability to protect the view from structure. Further, Ms. Lynch suggested that if the Commission felt strongly that multiple viewing areas should be permitted, the Commission should recommend that the City Council amend the Ordinance to match the current language in the Guidelines. Chairman Clark suggested that the Commission could present language supporting both single and multiple viewing areas for consideration by the Council. He then asked the City Attorney if this type of change to the Ordinance would constitute a substantial modification that would require voter approval. After re-reading a portion of the Ordinance, Ms. Lynch stated that the purpose of the Ordinance was to protect and enhanced views and that it could be argued that allowing multiple viewing areas allows for greater protection of views. However, she also pointed out that the voters specifically chose Proposition M over the other competing proposition, which contained broader language. At that point, Commissioner Weisz asked the City Attorney if, in her opinion, the "best and most important" viewing area could be established for each permit requested for a particular property. Ms. Lynch responded that once designated the viewing area could not be changed and went on to say that if the City and the property owner were unable to agree on the viewing area, the decision of the City would control. Vice Chairman Cartwright asked about a case where the single "best and most important" viewing area is already established on a property and the residence is renovated, such that a better viewing area is created. Could the Commission revise their determination of the "best and most important' viewing area on the property? Ms. Lynch responded that the Code does not • currently allow for the designated viewing area to be changed. Additional discussion ensued between Commissioner Sweetnam, Commissioner Weisz, Chairman Clark and City Attorney Lynch regarding the concept of a viewing area including an entire elevation on a lot versus a single room in a house. The Commissioners based their opinion on the Ordinance definition of "view", which states that "view may extend in any horizontal direction, 360 degrees, and shall be considered as a single view !II even if broken into segments by foliage, structures or other interference. " The Commissioners felt that segmentation of the view from inside the residence was included in the intent of this definition. Commissioner Sweetnam referred to Paragraph 4 on Page 2 of the Guidelines which state that "Views may be taken from second (or higher) stories of a structure. " He went on to say that some homes are built to have the view from the second story, which then could be blocked by foliage if the Commission could only protect views from the first story "viewing area" , as is the case for Height Variation Permit applications. The Attorney suggested that the right to build a structure on a property took precedence over the right to have foliage. This is why the maximum height for foliage was established at 16' . She felt that there is a distinct legal difference between the person who is denied the right to build any structure on their lot versus the person who already has a home and simply wants more foliage around it. Clearly, the right to have foliage has a lesser standard of protection than the ability to develop a residence on a lot. Chairman Clark observed that foliage is a living organism that constantly changes over time, whereas a structure is a static object that does not change over time. Chairman Clark then asked the Commission how they wanted to proceed and itemized the alternatives: Alternative One would be to adopt a position of protecting a single viewing area; • Alternative Two would be to maintain the position that is already in the Guidelines, which allows for multiple viewing areas; and, Alternative Three would be to outline both positions, single viewing areas and multiple viewing areas, and present both alternatives to the City Council for a determination. Commissioner Sweetnam favored accepting Alternative Two. Although the City Council would make the final determination as to whether the Ordinance must be amended in order to be compatible with this position, in his opinion, the existing Ordinance language already supported this interpretation. Commissioner Green suggested that the revised Guidelines (Page 2 , Item B1) where the sentence reads, "Viewing areas may include multiple locations" should be modified to read " . .viewing area may include multiple rooms. " The City Attorney felt that was an interesting approach, but still felt that the Ordinance would need to be amended to include similar supporting language. • View Restoration Commission Meeting September 15, 1994 Page 8 Commissioner Sweetnam said that it might be simpler to change the term "viewing area" to "viewing areas" throughout the Guidelines. City Attorney Lynch stated that his suggestion would certainly help, but she still felt that amendments to the Ordinance would be necessary, so that the two documents are compatible. The City Attorney's concern was that the provisions contained in the Guidelines are supposed to spring from the express language of the Ordinance. Therefore, the two documents need to be as consistent as the City can possibly make them. Commissioner Green offered that when the Commission hears a View Restoration Permit case and makes a determination on the protected "viewing area, " a detailed description of the designated area should be included in the Commission's decision (i.e. resolution) for future reference. City Attorney Lynch felt that this would be very helpful. Chairman Clark said that if it is the sense of the Commission to have their current interpretation transmitted to the City Council, he felt that it could be easily rejected by the Council since they were not present at these discussions. Instead, he felt that the Council should be presented with two sets of alternatives, both presented in an equal light in terms of the logic and the weight of each argumentation. He pointed out that in the last Joint Workshop, there were some Councilmembers who were predisposed to the single viewing area position and if the Commission does not provide them with the rational for the multiple viewing area position, they would probably not change their minds. Attorney Lynch suggested that even if the Commission provided the Council with arguments on both sides of the issue, they could still include a specific recommendation and an explanation as to why the Commission chose the position that they did. Chairman Clark suggested that he, Commissioner Green and Commissioner Sweetnam meet with Staff and the City Attorney within the next week to draft arguments on both sides of the issue. The Commission then returned to discussing the draft Guidelines: Regarding Section B1 on Page 2, Staff asked if the Commission wanted to change the second sentence to read "multiple rooms" rather than "multiple locations. " Chairman Clark replied that he was inclined to leave the language as it was and would prefer to look at this as part of the upcoming working session with the City Attorney Regarding Page 3 , Commissioner Sweetnam suggested reversing the order of Paragraph "e" to change the third paragraph to the second paragraph and remove the words, " . . .as an Alternative. . . " and make, 110 View Restoration Commission Meeting September 15, 1994 Page 9 "The Covenant. . . " the beginning of the third paragraph. Chairman Clark asked if it was Commissioner Sweetnam's intent to give precedence to the action in the Ordinance, versus the Covenant. Commissioner Sweetnam agreed saying that he would like to do away with the Covenants altogether, but he does understand that the Staff uses them, particularly in the issuance of building permits. However, he noted that it is an alternative to a Vegetation Inspection, as required by the Ordinance. In response to Commissioner Sweetnam's remarks, Commissioner Weisz proposed that the Commission delete Section "e", stating that it seems to adds a great deal of confusion to an already complicated process. Commissioner Green asked if he meant to completely eliminate the option of filing a Covenant and Commissioner Weisz answered that this was his intent. Chairman Clark questioned whether the Commission should eliminate the use of Covenants, even though the adopted Height Variation Guidelines allows them? Planning Administrator Petru stated that Covenants provide another mechanism for protecting the views of property owners who have failed to submit documentation of their views with the City. A view can be restored through Code Enforcement, rather than the landowner having to go through the View Restoration Permit process. The City Attorney agreed with the Staff on this point. Chairman Clark added that if an applicant wants to get his view restored by having his neighbor remove his foliage, the applicant should be willing to live by the same standards. Commissioner Green said that he had a problem with this process, since the applicant is required to waive his rights as a foliage owner, since he will not be able to participate in the View Restoration Permit process in the future if his foliage comes into question. He was concerned that the decision for what foliage must be removed and what can stay would be solely- decided by the Staff. Chairman Clark responded that he understood Commissioner Green's point, but if Covenants were taken away, the Commission would have a plethora of View Restoration cases to consider. The City Attorney said that good arguments had been made for each positions regarding Covenants. On one side, it was argued that an applicant requesting permission from the City to have foliage removed from someone else's property, should be willing to abide by the same Ordinance and agree not to block someone else's view. On the other hand, it was argued that the privilege of building a structure, which is permanent and does not change, is a different type of permit than asking to have a view restored. The Attorney felt that whether or not to require Covenants to be submitted as part of a View Restoration Permit application was not a legal issue, bur rather a matter of policy for the Commission and the Council to come to grips with. 111 !II View Restoration Commission Meeting September 15, 1994 Page 10 Commissioner Sweetnam stated that he felt that the concept of Covenants weakened, rather than strengthened, the Ordinance. He felt that Covenants created two classes of property owners: those who have Covenants on their property and those who do not. On the other hand, he felt that the Ordinance treated everyone equally. Chairman Clark then asked the Staff and the City Attorney if the City Council has expressed a similar problem with the Covenants. Neither the City Attorney, nor Staff, were aware of any such discussions at the City Council level. City Attorney Lynch suggested that this was perhaps another issue that the Commission may wish to present both arguments to the City Council, since the Commission had an opportunity to consider this issue in great detail. As a final point, the City Attorney stated that the Covenants were a straight forward and relatively economical solution to a problem, since they avoid people having to file View Restoration Permits and come before this Commission. Although Covenants have several defects discussed that evening, they can solve view impairment problems with a minimal amount of Staff time and cost to the City, which is another factor that must be considered. After additional discussion, Chairman Clark asked if there was a motion to remove Paragraph "e". Commissioner Weisz so moved and the motion was seconded by Commissioner Sweetnam. The motion passed by acclamation. Page 4 : Regarding Paragraph 2b, Commissioner Sweetnam asked if the building pad would be the appropriate measuring mark, rather than the front property line on a downsloping lot. Planning Administrator Petru answered that this is directly from the Code, which defines how the 16' height limit for structures is measured on various lot types. Down sloping lots are not considered to be pad lots, that were defined in Paragraph "c" . After some discussion, Commissioner Sweetnam stated that some clarifying language was needed because someone reading the Guidelines would think that they are entitled to 16' high foliage, as measured from the front property line. However, Staff pointed out that in Section 2 (just above Paragraph "b") that the foliage height is controlled by whichever measurement is lower, so that if the ridge line of the residence was below 16' , as measured from the front property line, this lower measurement would control. City Attorney Lynch suggested that the two paragraphs should be tied together by a cross reference, so that it is clear that the lower measurement is the controlling factor. Ms. Lynch went on to say that she wanted to modify the language in the paragraph below Paragraph "c" , regarding when the Commission has jurisdiction over hedges and how the height of hedges is measured. View Restoration Commission Meeting September 15, 1994 Page 11 Page 5: Vice Chairman Cartwright asked, if the Commission decided to bring in an expert, who would bear the cost. Commissioner Weisz who stated that the City would not pay for the expert, since it was the policy of the City for applications to be self-supporting. Vice Chairman Cartwright expressed his views that if the City calls in an expert, that expense should not be passed on to the applicant. Chairman Clark referred to the Minutes of August 4, page 5, where it was decided the Commission would determine whether an "expert" was needed on a case by case basis and the cost of requiring such expert testimony would be at the applicant's expense. Commissioner Weisz stated that he agreed with Vice Chairman Cartwright, but found the paragraph, as written, acceptable and a model of clarity. Commissioner R. Green said he was not completely happy with the concept, but was satisfied that it is a fair solution. Chairman Clark stated that he was satisfied with the draft language, as well. Vice Chairman Cartwright said that when the Commission finalizes the Guidelines, prospective applicants should be able to review some estimated costs for processing a View Restoration Permit application. Commissioner Weisz suggested that Staff should include a statement in the application form indicating that the services of one or more of the specialists may be required and a idea of what those costs may average. It would then be incumbent on the applicant to decide whether or not to go forward with the project. Page 6: Commissioner Weisz called attention to Section 4, Application Procedure, where the word "complete" is enclosed by quotes and wondered what the term meant. Staff responded by saying it meant that the application was complete to begin processing and stated that the quotes could be taken out, if the Commission so desired. The Commission agreed to remove the quotes on Page 6, as well as on Page 7, where the term deemed "complete" appeared again. Page 9: The City Attorney suggested that a number of court cases have come down recently where greater and greater burdens are being placed on local agencies to accept public testimony. Ms. Lynch felt that the time limits, as stated in the draft Guidelines, were too restricted given the complexity of many of the cases considered by the Commission. She suggested a minimum of ten minutes for each applicant(s) and foliage owner(s) , with an allowance for a three minute rebuttal. In addition, the City Attorney suggested that there be a certain amount of flexibility allowed, so that if expert testimony is involved, the Commission could allow the expert additional time. The City Attorney felt that this would allow all parties adequate due process. Chairman Clark stated that the Commission had attempted to address this concern in Paragraph "h" . The Commission decided to direct Staff to modify the language to reflect the City Attorney's concerns. 111 View Restoration Commission Meeting September 15, 1994 Page 12 Commissioner Sweetnam directed the Commission's attention to the last paragraph on Page 9, which he felt was well written, but there had been previous discussion that this paragraph needed to be broken into smaller sub-paragraphs in order to be clearer. The City Attorney agreed that the paragraph should be revised and brought back to the Commission for their approval. Page 10: Staff asked if the underlined sentence in Paragraph 1, beginning with "After Issuance. . . " should be taken out. The City Attorney replied that she felt that it was useful to leave this language in because it provided a benchmark for the City. In the case of those landowners who did not submit documentation of their existing view, the City should not be held responsible for something that was incumbent upon the property owner. AGENDA VII: Items to be Placed on Future Agendas A. Staff Staff indicated that the draft Joint Workshop Minutes of June 30 Minutes would be placed on the next agenda for the Commission's discussion. B. Commission The Commission did not have any items to be placed on a future agenda. Planning Administrator Petru indicated that the Staff had been receiving quite a few calls regarding the recent City Newsletter article regarding Documentation of Existing Foliage. Chairman Clark asked the City Attorney if she could share with them the latest information on the litigation against the City on the View Restoration Ordinance. Ms. Lynch stated that although the City Attorney's office completed the administrative record long ago, the Court Clerk has not transmitted the case to the Court Recorder, which is the first necessary step towards an appeal hearing. However, just that week, the person in charge of that particular case was identified and the City Attorney's office has written a letter to them urging that the case be moved along. In light of these delays, the City Attorney felt it would not go to court before the end of the year. AGENDA VIII: Comments from the Audience Since there was no audience, there were no requests to speak. 111 111 • View Restoration Commission Meeting September 15, 1994 Page 13 AGENDA IX: Adjournment The next regular meeting of the View Restoration Commission is scheduled for October 6, 1994, at 7: 00 PM, at Hesse Community Park. The motion for adjournment was made by Commissioner Weisz and seconded by Commissioner Boudreau. The meeting was duly adjourned at 9:18 p.m.