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VRC MINS 20021003 0 0 Approved on: Decem r 5,2002 VIEW RESTORATION COMMISSION REGULAR MEETING October 3, 2002 Chairman Alberio called the meeting to order at 7:00 P.M. at Fred Hesse Community Park, 30940 Hawthorne Boulevard. The Pledge of Allegiance followed, led by Commissioner Dyda. Present: Chairman Alberio, Vice Chairman Slayden, Commissioners Drages, Dyda, Franklin and De Moraes. Commissioner Weber arrived at 7:10 pm. Absent: Commissioner Iseda was absent (excused). Also present were Project Coordinators Trayci Nelson and John Alvarez and Recording Secretary (vette Munoz. APPROVAL OF AGENDA Commissioner Dyda suggested changing the order of the agenda. The order was changed to address Public Hearing items first followed by Continued Business items. Commissioner Dyda moved to approve the agenda as amended, seconded by Commissioner Slayden. Motion carried (7-0). COMMUNICATIONS Staff: Senior Coordinator Nelson distributed a copy of the first page of the Conditions of Approval for VRP No. 59, which was omitted from the agenda packet. Recording Secretary Munoz handed out a copy of Proposition M to all Commissioners as requested by Commissioner Drages. Commission: 1. COMMISSIONER DYDA'S VIEW RESTORATION GUIDELINE REVISION NOTES. Commissioner Dyda agreed to address this as part of the Guideline Revisions under Continued Business. 2. COMMISSIONER FRANKLIN'S VIEW RESTORATION GUIDELINE REVISION NOTES. VIEW RESTORATION COMMISSION MINUTES October 3, 2002 Page 1 of 14 0 0 Commissioner Franklin agreed to address this as part of the Guideline Revisions under Continued Business. CONSENT CALENDAR: 1. MINUTES OF JUNE 20, 2002 The following corrections were made to the minutes: A. Chairmen Alberio noted that the last sentence on page 5 of 6 in Paragraph 4, which begins with "Mr. Robert Steinhauer", needed the word "are" changed to "be". B. Commissioner Dyda stated that on page 5 of 6, he did not second the motion as he had recused himself from this case. C. Chairman Alberio stated that on page 5 of 6 in paragraph 7 that more specific language is needed in reference to the dormant months. He suggested that the dormant months actually be named. D. Commissioner Franklin noted on page 6 of 6 that the motion for VRP No. 122 is incorrect. The correct motion was to approve VRP No. 122 to trim, lace and/or top trees to the height of the Cho pad level. E. Commissioner Dyda pointed out on page 6 of 6 that he did not move to continue this motion, as he was recused. Commissioner Dyda moved to approve the minutes as amended, seconded by Commissioner Franklin. Vice Chairman Slayden abstained from the vote, as he was not present at the June 20, 2002 meeting. Motion carried (6-0-1). 2. MINUTES OF AUGUST 1, 2002 Commissioner Dyda moved to approve the minutes as presented, seconded by Commissioner Slayden. Motion carried (7-0). 3. MINUTES OF SEPTEMBER 19, 2002 Commissioner Franklin moved to approve the minutes as presented, seconded by Commissioner Dyda. Motion carried (7-0). VIEW RESTORATION COMMISSION MINUTES October 3, 2002 Page 2 of 14 0 0 PUBLIC HEARINGS: 1. VRP 132 DODELL Mr. Dodell and Ms. Priest have agreed to continue this item to the meeting of October 17, 2002 so that the Commission can focus on and get through the guideline revisions. Commissioner Dyda moved to continue this item to the October 17, 2002, meeting, seconded by Commissioner Drages. Motion carried (7-0). CONTINUED BUSINESS: 1. VPR No 59 FINAZZO MAINTANENCE REVIEW Chairman Alberio recused himself from this discussion, as lives within 500 feet of the Finazzo property. Senior Project Coordinator Nelson gave an overview of the Staff report and provided a response to the questions raised by the Commission during the first meeting held on June 20, 2002. In response to those questions, Ms. Nelson indicated that 1) The Commission could not change the original VRC decision for VRP No. 59 and could only rule as to the adequacy of the existing annual maintenance schedule, and 2) that the Commissioners were not required to visit the properties to participate in a maintenance review hearing if the Commissioners believe that there is enough information available to make a determination. Senior Project Coordinator Nelson then presented a historical overview of the trees in question to show how they have been trimmed and how they have grown over time via a PowerPoint presentation. She reiterated that this meeting was only to discuss the maintenance schedule and that any other foliage issues Mr. Finazzo was concerned with needed to be addressed between he and Mr. Zimmel, the foliage owner, independent of this process. Commissioner Dyda expressed a concern regarding making a decision based on the pictures in the PowerPoint presentation. He stated that they were not taken from the same place. He expressed a concern about inconsistencies in the picture angles. Senior Project Coordinator Nelson explained that the pictures were taken from the same viewing position, the living room window each time Staff visited and photographed the trees. She also indicated that Staff used the same digital camera. She stated that some pictures were taken to highlight certain branches; therefore, the zoom lens was used. VIEW RESTORATION COMMISSION MINUTES October 3, 2002 Page 3 of 14 0 0 Commissioner Dyda suggested that in the future there be consistency in photos taken by Staff and that pictures be taken from the same viewing position. He further stated that exhibits should be marked with the lens type. Commissioner Weber felt that annual maintenance was sufficient, as the Conditions of Approval are not intended to guarantee a 365-day a year view. Commissioner Drages reaffirmed that she felt the annual maintenance schedule was sufficient. Commissioner Franklin stated that Mr. Finazzo could reapply via a new maintenance review request should growth rates change in the future. Commissioner Franklin moved to keep the current annual maintenance schedule as is, seconded by Commissioner Drages. Motion carried (7-0). 2. VIEW RESTORATION GUIDELINE REVISIONS Senior Project Coordinator Nelson recalled the history of the guideline revisions. She described the subcommittee work conducted by herself and Commissioners Dyda and Franklin. She indicated that since the Commission was unable to review the Guidelines at the September 19, meeting for lack of a quorum Commissioner's Dyda and Franklin subsequently scanned and merged their notes and language changes for that meeting with Staffs September 19th report and have generated two additional reports. Ms. Nelson suggested that in order to keep things simple, the Commission should review Staffs report of September 19, 2002 rather than the separate documents produced by Commissioner's Dyda and Franklin. She also suggested that Commissioner's Dyda and Franklin could discuss their changes as we progressed from issue to issue rather than a separate report by Staff and the two Commissioners. There was a discussion regarding the order of how the memos presented by Commissioners Franklin and Dyda and Senior Project Coordinator Nelson were to be reviewed. Commissioner Dyda stated that he felt the issues in these memos could be treated independent of each other and that the Commission could address them one by one with Commissioner Franklin and himself giving their input as suggested by Staff and the Commission agreed. Senior Project Coordinator Nelson proceeded to address all issues covered in her memorandum dated September 19, 2002. She noted that she wanted to address issue No. 1 last, as it called for the most discussion. VIEW RESTORATION COMMISSION MINUTES October 3, 2002 Page 4 of 14 • ISSUE 2: HOW OFTEN TO TRIM? Staff deferred to Commissioner Dyda for explanation of this concept. Commissioner Dyda used the white board to illustrate the "encroachment" theory. He illustrated a growth window allowing acceptable growth before scheduled trimming is needed. This concept would reduce unnecessary requests to Staff for review of insignificant foliage growth. He referred to his own view restoration case (VPP No.17) as a precedent. A reference point for trimming and growth is established at the time that the conditions of approval are set. This reference point eliminates most of the subjectivity from the evaluation of the foliage growth. Foliage may grow to the reference point before the applicant can call Staff to discuss needed maintenance. Senior Coordinator Nelson indicated that the concept has worked well in Commissioner Dyda's situation and that Staff was supportive of it. Commissioners discussed not locking the Commission into having to decide one way by either establishing a maintenance schedule or the "encroachment" theory. Senior Coordinator Nelson suggested that the Commission could establish a trim level and a growth level as well as a time frame that would allow the Commission flexibility in utilizing this new option. Commissioner Dyda agreed that Staffs approach of establishing a view level and a timeframe, allows the Commission to be flexible to implement the two options. Commissioner Franklin moved to combine the option of a maintenance schedule and "encroachment" theory giving the Commission the ability to choose the most appropriate one on a case-by-case basis. Seconded by Commissioner Weber. Motion carried (6-1) with Commissioner Dyda dissenting. • ISSUE 3: WHAT IS THE VIEW ENFORCEMENT PROCESS? Senior Project Coordinator Nelson stated that the subcommittee was looking for a way to eliminate needless inspection requests by providing a financial incentive to the maintenance request or view code enforcement process. Under the current process, initiated by the view holder, Staff has to respond to almost every complaint call. The new suggested process would make the applicant and foliage owner accountable. VIEW RESTORATION COMMISSION MINUTES October 3, 2002 Page 5 of 14 1110 Commissioner Dyda stated that the change would require that the applicant must notify the foliage owner and the City of the encroachment on their view. The applicant sends the foliage owner a letter and carbon copies the City. This way the foliage owner receives a communication and knows the City has been copied so is more inclined to respond to the applicant's issue. The foliage owner then has 10 days to correct the view encroachment. If the foliage owner and the applicant disagree on the view encroachment then Staff visits the site and makes a determination. Whoever is in error will be assessed an inspection fee. Senior Project Coordinator Nelson explained that Staff receives and responds many frivolous requests from view owners and that this change to the Guidelines could reduce the amount of frivolous calls made to Staff. Commissioner De Moraes asked about the fee. Commissioner Dyda clarified that the City Council would establish the amount of the inspection fee and that this fee is not intended to penalize or fine rather, the fee is designed to cover Staffs expenses. He also expressed his concern with Staff's ability to enforce maintenance trimming more frequent than once per year and the current practice of reviewing maintenance schedules annually. He also indicated that the ambiguity of "significance" is problematic when deciding maintenance compliance therefore he believes that significance should not be used here. Staff should only decide if the foliage is over the required level that it is to be maintained. Senior Project Coordinator Nelson explained how Staff enforces view encroachments from approved View Restoration and Preservation actions. Commissioner Weber liked the approach and suggested changing the time period from 10 days to 30 days in order to allow the foliage owner ample time to schedule trimming. In agreement with Commissioner Dyda, he questioned Staffs ability to have the foliage owner trim foliage more frequent than the maintenance schedule allows for. Senior Project Coordinator Nelson explained the view owner's right to request trimming maintenance as often as they like if they feel that the foliage is in violation. She went on to describe that the current process allows for one request per year but that more frequent requests could be made by the applicant upon payment of a fee. Commissioner Franklin addressed the issue of date of notification to the foliage owner. He suggested that date of receipt of the notification letter should be when the clock starts on correcting the encroachment. Issues like extended trips by the foliage owner could cause the foliage owner to VIEW RESTORATION COMMISSION MINUTES October 3, 2002 Page 6 of 14 0 0 miss his compliance timeframe resulting in paying a fee unfairly. Date of receipt would allow the foliage owner the full amount of time to correct the foliage encroachment. Commissioner Dyda pointed out that in fairness to the view owner, foliage owners should either leave contact information with the City or have their responsibilities delegated in the event that they are absent for an extended period of time. Senior Project Coordinator Nelson stated that Staff can accommodate these types of situations and has done so in the past. She noted that this is not a common problem. Commissioner Weber moved to accept the subcommittee's recommendation as written and to amend the response time from 10 days to 30 days, seconded by Commissioner Slayden. Motion carried (7-0). • ISSUE 4: WHAT IS THE VALUE OF LACING? Senior Project Coordinator Nelson recommended to keep lacing as a viable trimming option. She went on to say that lacing is a form of trimming and that removing the lacing technique from the Guidelines would restrict the trimming options available to the Commission. Commissioner Dyda stated that the lacing option would not be completely removed from the Guidelines. Instead, lacing would be restricted to the outer edges of the foliage in order to frame and soften the trim. He added that lacing the middle of a tree does not properly restore a view and is contrary to the intent of Proposition M. Lacing as a means of restoring the view also increases the difficulty of maintenance enforcement. Commissioner Drages expressed that she was not in favor of restricting lacing to the edges of a tree and that it should be left as an option to the Commission for particular situations. Commissioner Franklin concurred that the lacing option be maintained at the discretion of the Commission. Commissioner Slayden moved to keep lacing as a trimming option, seconded by Commissioner Drages. Motion carried (6-1) with Commissioner Dyda dissenting. VIEW RESTORATION COMMISSION MINUTES October 3, 2002 Page 7 of 14 • ISSUE 5: HOW TO ASSURE THE WORK IS DONE WITH REASONABLE QUALITY? Staff recommended that the Commission modify the bidding instructions to those applicants obtaining trimming bids. New instructions would include the cost of a certified tree trimmer or an accredited arborist on site to supervise the work being performed. Commissioner Franklin recommended that the certified tree trimmer or arborist be certified by the International Society of Arborist. Discussion was held on the benefits and costs of having a certified tree trimmer or an accredited arborist do the trimming to ensure work is performed properly. Commissioner Slayden moved to accept as presented to add the requirement of a certified tree trimmer to the applicant bidding instructions, seconded by Commissioner Dyda. Motion carried (7-0). RECESS AND RECONVENE At 9:05 P.M. Chairman Alberio requested a short recess. We reconvened at 9:15 P.M. At this time Commissioner De Moraes was excused to leave because he was not feeling well. • ISSUE 6: WHAT SHOULD BE THE TREE REPLACEMENT GUIDELINES? Senior Coordinator Nelson indicated that there was discussion among the subcommittee that the Guidelines had contradictory language as to the Commission's discretion for the removal of trees and stumps. She went on to state that after discussing the matter with the City Attorney, the issue could be resolved by changing Section V (Commission Action) A4 by removing line two from the paragraph. The sentence would now read: "removal shall mean the removal and disposal of a tree or shrub. Unless otherwise directed by the Commission, removal usually shall not include the removal and disposal of a plant's stump or root system since they usually assist with erosion control." Commissioner Dyda commented that the reason for not removing the root system was designed to maintain the stability of the soil. Removing the root system would also negatively affect future landscaping improvements. VIEW RESTORATION COMMISSION MINUTES October 3, 2002 Page 8 of 14 0 0 Staff explained that the Commission currently has the discretion to remove the root system of a tree but doesn't usually order that because of its expansive nature. Commissioner Dyda moved to accept as amended, seconded by Commissioner Slayden. Motion carried (6-0). • ISSUE 7: TO WHAT EXTENT DOES PRIVACY BECOME AN ISSUE? Staff commented that the existing language within the Guidelines is adequate to address the issue of privacy grievances by foliage owners. Therefore, Staff recommended to the Commission that no change to the Guidelines is necessary. Commissioner Dyda added that many foliage owners have claimed privacy encroachment where no reasonable claims could be substantiated due to the typography between foliage owner and view owner. He suggested that the word "existing" be added to line 2 of the recommendation. It should now read, "limit the effort to restore privacy only to that portion of the work where there was real existing privacy and no other means are available to the foliage owner." Adding this language to the Guidelines would allow the Commission the latitude to determine what is reasonable privacy. Commissioner Dyda moved to accept as amended, seconded by Commissioner Drages. Motion carried (6-0). • ISSUE 8: EARLY NEIGHBOR CONTACT PRIOR TO MEDIATION MEETING. Senior Coordinator Nelson indicated that the subcommittee's recommendation was to require evidence of early neighbor contact by having a block to check on the letter setting the mediation meeting. This check block would insure that the foliage owner was made aware of the view impairment issue before the mediation meeting took place. Staff explained that the current practice of scheduling a pre-application meeting was partly designed in part to resolve this issue. Senior Project Coordinator Nelson further explained that the check block requirement was used in the past and it was not effective. Commissioner Drages commented on the effectiveness of the check box and the tensions that exist between foliage owner and view owner. Commissioner Dyda noted that he believed the mediation meeting was designed to avoid the public hearing process and the cost associated with it, not to substitute early neighbor contact. VIEW RESTORATION COMMISSION MINUTES October 3, 2002 Page 9 of 14 Senior Project Coordinator Nelson recounted how the pre-application process was created to ensure that there was dialog between the applicant and foliage owner. Commissioner Dyda suggested having the applicant send the foliage owner a registered return receipt letter as proof of having made early neighbor contact. Commissioner Dyda noted that he disagreed with Senior Project Coordinator Nelson regarding the reason why pre-application meetings were instituted. He stated that it was created to minimize the number of cases heard thereby reducing the City's view restoration expenses. He added that Staff and the Commission might have the opinion that the suggested form of contact was ineffective in the past because they only witnessed the failures between parties. Commissioner Dyda moved to require a registered letter with a return receipt, seconded by Commissioner Franklin. Motion carried (4-2) with Commissioners Slayden and Drages dissenting. Commissioner Slayden moved to require a check box and a letter with return receipt, seconded by Commissioner Dyda. Motion carried (6-0). • ISSUE 1: WHAT IS THE VIEW? Commissioner Dyda proposed the recommendation to remove the words "significant" and "significantly" from the Guidelines and to utilize the guideline's existing definition of the view frame to dictate the impact of the view impairment. Senior Project Coordinator Nelson explained that under this scenario assessing the impact of any view impairment would not be based on the significance of view impairing foliage; rather Staff would assess the impairment based on all foliage within the established view frame. Essentially, no foliage would be permitted in that view frame. Staff indicated that the City Attorney cautioned that changing the verbiage, such as removing the words "significant" and "significantly", might open the door for new legal challenges. In order to address view-impairing foliage that Staff had not addressed in the permit process, Staff had added text attached to the Draft Guidelines Section VII (E) that requires the trimming of other foliage not specified in the Staffs view analysis and/or the conditions of approval. In effect, this new language would achieve the same result without removing the word "significant" and "significantly" from the Guidelines. Senior Project Coordinator Nelson further stated that removing the words "significant" and "significantly" will not remove the subjectivity out of the process. VIEW RESTORATION COMMISSION MINUTES October 3, 2002 Page 10 of 14 1110 0 Commissioner Dyda commented that the Ordinance references the word "significant" once. In review of the Ordinance, the word "significant" refers back to Proposition M and nowhere does the proposition contain the word "significant". Commissioner Dyda pointed out this inconsistency between Proposition M and the Ordinance. He further stated that if the Commission does decide to remove the word "significant", it would only be removed from the Guidelines, not the Ordinance. Commissioner Dyda acknowledged that there will always be judgments in deciding what the view frame is, however, defining a view is much more problematic. Nevertheless, the City ultimately decides what the view is despite any view owner's challenge. He stated that the other problem is the subjectivity of the word "significant", which can't be legally defined. Commissioner Dyda suggested that the Commission might need to seek further consultation if the Commission were to recommend the removal of the word "significant". Commissioner Franklin reasoned that although there are problems with the word "significant", it should remain within the Guidelines because it is one of the few areas where the Commission has discretion. Commissioner Franklin added that when the City Council approved Ordinance 319, they indicated that the Ordinance met the intent of the proposition. He agreed with Commissioner Dyda's assertion that the word "significant" cannot be defined but the word "significant" forms the basis of Ordinance. He equated the word "significant" to the legal term "reasonable". Commissioner Weber recommended that the Commission leave the word "significant" within the Guidelines because it allows the Commission the discretion to balance fairness between the interest of the view owner and the foliage owner. Commissioner Franklin removed his concept of a seventh finding based on leaving the word "significant" in the Guidelines. Commissioner Franklin moved to accept the word "significant" as is in the Guidelines, seconded by Commissioner Weber. Motion carried (6-0). • AN EXAMPLE OF ACCEPTABLE FOLIAGE GROWTH. Commissioner Franklin proposed an illustrated figure for Page 10 in Guidelines. This figure supplements finding B. His guideline revision memo includes this figure illustrating Type A trees less than 16 feet in height and/or below the ridgeline of the primary structure. The figure shows a scene in which the ocean horizon is below the ridgeline of the VIEW RESTORATION COMMISSION MINUTES October 3, 2002 Page 11 of 14 0 0 primary structure. The figure also illustrates a Type B tree that has growth above the scene and also above the ridgeline. Commissioner Franklin explained that the Tree A tree is not subject to the Ordinance because it does not exceed 16 feet and/or the ridgeline of the primary structure. Type B trees are acceptable because the growth above the ridgeline does not block a view as defined in the ordinance. The point of the figure is to clarify acceptable foliage in reference to the 16-foot height minimum and the ridgeline of the primary structure or above the view as defined in the Ordinance. Commissioner Dyda, based on his interpretation of Commissioner Franklin's proposed figure, discussed preserving views from view corridors. The proposed figure denied protected views from newer tract view lots. Various Commissioners stated that view corridors were not what was meant or being illustrated in this diagram. Commissioner Slayden felt that the proposed figure was acceptable because it graphically represents the guideline's acceptable foliage growth heights in relation to views. Commissioner Franklin moved to accept this figure, seconded by Commissioner Slayden. Motion carried (5-1) with Dyda dissenting. • FOLIAGE OWNER RIGHTS WITH REGARDS TO TRIMMING FOLIAGE BELOW 16 FEET OR THE RIDGELINE OF THE PRIMARY STRUCTURE. Commissioner Franklin proposed that the Commission have at its discretion the authority to order trimming below 16 feet or the ridgeline in order to balance a tree and provide an aesthetically pleasing appearance. He refers to Page 15 (D) in his guideline revision memo, which contains the text that would allow trimming portions of a tree that are below 16 feet or the ridgeline for aesthetic reasons. This additional trimming below the 16-foot level would balance trimming done above the 16-foot level. As a necessary part of this section, Commissioner Franklin also included text that gives the foliage owner the right to decline trimming below the 16- foot level. Senior Coordinator Nelson gave an example of a case in the Portuguese Bend area involving the lacing of a pine tree. Lacing was recommended and the foliage owner only wanted the portion above 16 feet laced instead of having the entire tree laced for aesthetic reasons. In this case, the discretion to lace below 16 feet was left to the foliage owner. Senior VIEW RESTORATION COMMISSION MINUTES October 3, 2002 Page 12 of 14 0 0 Coordinator Nelson went on to say that this is implied in the Guidelines and really has not been a problem. Commissioner Franklin moved to accept the proposed paragraph as letter D, seconded by Commissioner Weber. Motion carried (5-1) with Dyda dissenting. • PRIVATE AGREEMENT FORM Commissioner Dyda presented a template for a private agreement form. He suggested this template be adopted (after further revisions and modifications are made) as standard practice when cases are settled in the pre-application process. Commissioner Franklin suggested several points be taken into consideration when crafting the final version of the private agreement form. Topics such as enforcement, payment, disclaimers, and future property owners should be taken into consideration. Senior Coordinator Nelson stated that the form had been tested in a few pre-application meetings and that it had been a useful tool. She went on to say that she would have Carol Lynch, the City Attorney, review and provide input into this draft. • VIEW FRAME DOCUMENT The proposed guideline update presented by Staff included a figure, prepared by Commissioner Dyda, on page 12, which illustrates a view frame. Commissioner Franklin indicated that the figure is correct but the third of the three sentences t the bottom of the figure needs to be rephrased into wording more appropriate for guidelines. The wording, as presented, indicated that the Commission SHOULD be able to order replacement shrubs...etc. More properly, this sentence should read "May order a replacement shrub...etc." Commissioner Franklin requested, as a courtesy among colleagues that this final document not be voted on until the November 7, 2002, meeting. He will not be attending the October 17, 2002, meeting. Commissioner Franklin moved to have all revisions compiled into the main guideline revisions document and sent out for the VRC's review by October 17, 2002. These will be voted on at the November 7, 2002 VRC meeting. Motion carried (4-2) with Commissioners Dyda and Slayden dissenting. VIEW RESTORATION COMMISSION MINUTES October 3, 2002 Page 13 of 14 0 0 NEW BUSINESS: NONE. ITEMS TO BE PLACED ON FUTURE AGENDAS: VRP 132 Dodell is continued for the October 17, 2002, meeting. COMMENTS FROM THE AUDIENCE (regarding non-agenda items): NONE. ADJOURNMENT: Commissioner Weber moved to adjourn, seconded by Commissioner Drages. The meeting was duly adjourned at 10:25 P.M. The next regular meeting is tentatively scheduled for Thursday, October 17, 2002, at 7:00 P.M. at Hesse Park. VIEW RESTORATION COMMISSION MINUTES October 3, 2002 Page 14 of 14