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PC MINS 20161213 Approved 1/24/2017 CITY OF RANCHO PALOS VERDES PLANNING COMMISSION MINUTES REGULAR MEETING DECEMBER 13, 2016 CALL TO ORDER The meeting was called to order by Chairman Tomblin at 7:03 p.m.at the Fred Hesse Community Room, 29301 Hawthorne Boulevard. PLEDGE OF ALLEGIANCE Commissioner Leon led the assembly in the Pledge of Allegiance. ATTENDANCE Present: Commissioners Bradley, Emenhiser, James, Leon, Nelson, Vice Chairman Cruikshank, and Chairman Tomblin. Absent: None Also present were Community Development Director Mihranian, Senior Planner Alvarez, Assistant Planner Anaya, and Assistant City Attorney Burrows. APPROVAL OF AGENDA The agenda was unanimously approved as presented. COMMUNICATIONS Director Mihranian reported that the City Council held its annual holiday party on December 5th and that several Commissioners attended the event. He also reported that at their December 6th meeting the City Council reorganized, choosing Councilman Campbell as the new Mayor. At their December 20th meeting the City Council will consider the Planning Commission's November 29th recommendations regarding short- term rentals and that the Coastal Commission provided the City with a position letter from Chairman Kinsey on short-term rentals which was provided to the Commission. Finally, he reported that at their December 20th meeting the City Council will consider a policy on installing security cameras for HOAs. Director Mihranian introduced Assistant Planner Irving Anaya to the Commission. He reported that staff attended a South Bay Cities Council of Governments (SBCCOG) task force meeting on December 7th on short-term rentals, and he distributed written correspondence from Green Hills which responded to questions and concerns regarding the sales of plots on the Inspiration Slope Mausoleum rooftop in light of the recorded map. Commissioner Nelson reported that he submitted a letter to City Manager Willmore and Public Works Deputy Director Jules on the outstanding street slurry project and recognizing Inspector Jim Pugh for his good work. COMMENTS FROM THE AUDIENCE (regarding non-agenda item): Bernadette Sabath displayed several photos of niches at Green Hills. She counted 122 niches, however the she stated staff explained that was before some new arrangement was made with Green Hills. She showed photos of where the proposed retaining wall and niches would be located, as well as the staircase. NEW PUBLIC HEARINGS 1. Conditional Use Permit 153 Revision "F" (Case No. ZON2016-00466): 31186 Hawthorne Boulevard Assistant Planner Anaya presented the staff report, giving a brief description and background of the site. He explained the proposed revision to the CUP, which was to install a new LED sign face, replacing the existing sign. He explained the existing and proposed sign faces, noting the new sign will be in the same location and the size will not be altered. He stated that staff has modified and added specific conditions to the conditions of approval to allow for the modified LED signage, and reviewed those conditions. He stated that staff is recommending the Planning Commission conditionally approve the CUP Revision as conditioned in the staff report. Vice Chairman Cruikshank asked if the signs in the windows and on the site for advertising purposes are considered permanent or temporary. Director Mihranian answered the advertising signs would be considered temporary signs, while permanent signs would be the signs etched into the glass, such as the hours of operation. He stated staff will check to make sure the property is in compliance with the conditions regarding signage. Chairman Tomblin asked staff if the language in the conditions of approval will be more enforceable than what staff is experiencing with the sign at the Shell Station, noting that sign has caused a lot of problems in terms of the brightness of the sign. Director Mihranian explained these conditions of approval reflect lessons learned from the approval of the sign at the Shell Station. He noted that staff is still working with that applicant to ensure the illumination of the LED sign is brought into compliance. Commissioner Nelson felt that one reason the LED sign at the Shell Station is so bright is because the illuminated area is very small and is difficult to read. He asked what the comparison in size is between the Shell Station sign and the proposed sign. Director Mihranian felt the size is comparable. Planning Commission Minutes December 13,2016 Page 2 Chairman Tomblin opened the public hearing. Kohei Miki (applicant) stated he was available for questions. Commissioner Nelson asked Mr. Miki if the 7-11 was open 24-hours. Mr. Miki did not know. Commissioner Nelson asked if the station was putting in diesel, as advertised on the sign, and if so, would new tanks have to be installed. Mr. Miki did not know the answer to that question. Commissioner Nelson asked if the dimmer on the sign would be a software control or a manual control. Mr. Miki stated that on the permit application there is a diagram included, which shows a software control, but a manual dimmer is included. Chairman Tomblin closed the public hearing. Vice Chairman Cruikshank asked how the City will measure and quantify the brightness of the sign. Director Mihranian answered that staff looks for light spill-over or excessive glare into the intersection or beyond the property lines. He explained staff does not quantify the intensity of the lighting. Commissioner James moved to approve staff recommendation with the minor typo amendment to condition 32d to change "diming" to "dimming", seconded by Commissioner Nelson. The motion was approved, and PC Resolution 2016-17 was adopted (7-0). 2. Appeal of View Preservation Notice of Decision (Case No. ZON2016-00015): 59 Paseo de Castana Director Mihranian noted that per the View Restoration/Preservation Guidelines each Commissioner must disclose whether or not they have been to both properties in order to participate in the hearing. All Commissioners stated they had visited the sites. Chairman Tomblin disclosed that for the past 15 years his trees have been subject to a view permit. Senior Planner Alvarez presented the staff report, explaining the request is to modify the Community Development Director's determination of a View Preservation Permit tree Planning Commission Minutes December 13, 2016 Page 3 trimming requirement for seven common area pine trees owned by the Rancho Palos Verdes Estates Community Association. He summarized the background of the case, noting the differences between a View Restoration Permit and a View Preservation Permit. He explained that Staff determined the applicant provided to the City the required proof from 1991 that they had a view from their deck and dining room, which allows them to file for a View Preservation Permit. He explained the mandatory findings required in order to approve a View Preservation Permit, explaining the Director determined these findings could be made when approving the permit. He then explained the appeal issues, noting the appellant's is assertions that trimming the trees will likely kill the trees and that the Association has already provided view relief and the applicants are bound to the Association's determination of that view relief. The appellants also suggest that the City's View Ordinance interferes with the Association's CC&Rs. The appellants also assert that outdoor privacy will be eliminated, peace and welfare will be diminished, and that the applicants are not residents. He then explained the modifications that the appellants are seeking to the Notice of Decision. He noted that the property owners, Mr. and Mrs. Campbell at 12 Paseo de Pino, requests that that the Commission reject the Notice of Decision in its entirety, and he explained their reasons for the request. He asked that the Assistant City Attorney discuss the issue of residency. Assistant City Attorney Burrows explained that the intent of the View Restoration Guidelines is to provide rights for residential property owners. The term "resident" is not defined in the View Ordinance, in the Guidelines, or in the City's Municipal Code. She explained that staff has interpreted the View Ordinance to applying to property owners of residential properties in the City, and not necessarily restricted to a resident as defined by someone who lives at the site 12 months of the year. He explained this interpretation is consistent with the purpose of the View Ordinance. Senior Planner Alvarez reiterated that the purpose of the View Ordinance is to allow any residential property owner the right to file an application for view relief. He recognized that this was a point of contention for the appellant because the applicant hasn't resided in the subject house. Assistant City Attorney Burrows stated a memo from the City Attorney's office was included in the November 29th staff report. She explained that there was an assertion that the Ordinance substantially impaired the HOAs rights under their CC&Rs. She stated that the City Attorney's office analyzed the Ordinance and opined the Ordinance does not substantially impair HOA's rights. However, she noted that even if it did impair those rights, the Ordinance furthers the significant public purpose, which in this case is protecting the views available to all property owners and visitors. She stated this is a purpose that has been upheld by the Courts in other challenges to this City's Ordinance. Further, she noted that the Ordinance only impacts the CC&Rs as related to view issues and does not impact any other portions of the CC&Rs. Senior Planner Alvarez continued, explaining the appellants believe that trimming the trees will kill the trees. He noted that the City Arborist looked at the trees and the City's notice of decision for trimming the trees, and opined that the initial tree trimming will shock Planning Commission Minutes December 13,2016 Page 4 the trees, but not necessarily kill the trees. However, he also noted that sustained maintenance at the trimming height staff was recommending will most likely kill the trees. He noted that View Preservation Permit is to preserve a view and not necessarily about protecting trees. He stated that ordering the trees to be removed may not be possible without consent of the tree owners. He discussed the Commission's options as outlined in the staff report. He stated that staff has received no new information by the appellants, applicants, or interested parties that would alter staff's recommendation to uphold the Director's approval of this View Preservation case. He stated that since the appellants have not proposed any alternative solutions nor have they agreed to any of the options that have been provided in the staff report, staff is left to recommend that the Commission deny the appeal request and uphold the Director's approval. Commissioner Emenhiser asked staff which holds priority, the view ordinance or a HOAs CC&Rs. Assistant City Attorney Burrows answered that in the application of the View Ordinance, it is the view ordinance. Commissioner Emenhiser asked staff if there were any privacy issues. Senior Planner Alvarez answered that staff did not find any privacy issues. Commissioner Emenhiser noted the bond that was requested by the appellant and asked staff if they had been able to verify that the value of the trees would be roughly $210,000, as requested in the bond. Senior Planner Alvarez stated that staff had not evaluated how much it would cost to remove and replace the trees. Commissioner Nelson asked the Assistant City Attorney if one who pays the property taxes on a piece of property is considered the owner. Assistant City Attorney Burrows suggested that a non-property owner could probably pay the property taxes on a lot on behalf of the property owner. Commissioner Leon asked staff if they could quote anywhere in the Ordinance where it specifies that a resident or a non-resident has the right to make an application for View Preservation or View Restoration. Assistant City Attorney Burrows referred to Code Sections B(3), Section C(1)(a) describing the rights belonging to owners of property, and Section C(2)(a) of the Ordinance. She also noted the Guidelines state the general purpose of the Ordinance is to promote the health, safety, and the general welfare of the residents of the City by balancing the rights of the residential property owner with foliage against the residential property owner who has a view from a viewing area restored. Planning Commission Minutes December 13,2016 Page 5 Commissioner Leon stated that there was discussion about whether the view owner can request something through which the compliance will result in the death of the tree. He asked staff to point out language in the Ordinance where the views take priority over the life of the tree. Director Mihranian did not believe the Ordinance makes reference to the life of the tree, as it only specifically refers to the views. Commissioner Leon thought that the person asking for the view had to compensate for the cost of the first trimming or removal. He was surprised why this was not happening in this case, and asked why. Senior Planner Alvarez explained that in view restoration procedures there is a provision that requires the applicant to compensate for removed trees. View preservation procedures do not allow for that. Commissioner Leon asked why, in this case, view preservation is triggered rather than view restoration. Senior Planner Alvarez answered that the applicant had a choice of following the view restoration procedures or the view preservation procedures. The applicants have photos dating back to 1991 that show the view at that time. Therefore, they are asking the City preserve that 1991 view through the view preservation process. Commissioner Bradley stated that it looks as if the trees have been trimmed fairly dramatically from the bottom, and questioned if this was part of the annual maintenance done to the trees. He also asked if the arborist had looked at that and had an opinion. Senior Planner Alvarez stated he did not know what practices the Association has for maintaining the trees. He stated the City Arborist looked at the impacts associated with trimming the trees to the height recommended by the City. Commissioner James noted that both the City Arborist and the appellant's arborist have stated that a four foot reduction is likely to kill the trees. One of the options given to the Commission is to consider a two-foot reduction in the trees. He asked staff if either the City's Arborist or the appellant's arborist have voiced any opinion on whether the trees would survive with a two foot reduction. Senior Planner Alvarez explained the Notice of Decision does require a two foot reduction for certain trees. The City Arborist looked at specific trees that required a two foot reduction and opined that if they are regularly maintained to that two foot reduction height some of the trees would eventually would die. Commissioner James asked staff to respond to an argument made by Mrs. Kobayashi in her correspondence that the code states that privacy concerns only affect occupants of Planning Commission Minutes December 13,2016 Page 6 the property upon which the foliage is located, privacy is inapplicable because in this case the trees are not on the Campbell's property, but rather on the Association property. Senior Planner Alvarez explained staff looked at all properties within the line of sight of the property and assessed whether trimming the trees will cause any unreasonable privacy impacts. Commissioner James noted the City Attorney's office has opined that the Ordinance does not impair the contract rights of the parties, and even if it does it would be considered a permissible application of the city's police powers. He asked if that opinion was binding on the Commission. Assistant City Attorney Burrows stated that if the Commission cannot make the findings that this complies with the City's Ordinance then the Commission can overturn the Director's determination. What is before the Commission is whether the appropriate findings can be made to uphold the Director's determination that a View Preservation Permit can be issued. Chairman Tomblin opened the public hearing. June Kobayashi (applicant at 59 Paseo de Castana) explained that when she purchased her property in 1991 she took pictures of the view from the rear deck of the house. She stated the photos were not taken from the deck at the side of the house, as that deck did not exist at that time. These photos are being used as the basis for the View Preservation Permit request. She explained she changed from a view restoration to a view preservation request after going through the mediation process. During the mediation process she requested some of the view be restored and she offered to pay for the removal of some of the trees. At that time everything was rejected by the Association, and because she had the 1991 pictures, she applied for view preservation. She stated she has read the appeal and felt that the points put forth in the appeal have been addressed by the staff report, and the staff findings are to her satisfaction. She stated that she has nothing further to present at this time, and would be happy to answer any questions the Commissioners might have. Vice Chairman Cruikshank noted that Mrs. Kobayashi had mentioned that during mediation she and her husband had suggested some compromises, and asked what those compromises were. Mrs. Kobayashi explained that she and her husband do not feel all of the trees have to be removed and do not want the trees to die. She explained that now there is a wall of trees across the back of her property and she had suggested trees 6 and 7, and one of the trees in the center be shaped, removed, or lowered to allow her a view of the ocean. Kathy Campbell (appellant representing the HOA) stated that neither she nor anyone from the HOA spoke to Commissioner Bradley at the site. Planning Commission Minutes December 13,2016 Page 7 Commissioner Bradley stated that was correct, as he didn't speak to anyone while doing his site visit. He stated he was able to see all of the trees from the common area and from the applicant's property. Mrs. Campbell stated she was representing the HOA and disagreed with the findings in the staff report for three reasons: 1) the View Restoration and Preservation Code and Guidelines apply to resident owners and non-resident owners should not be entitled to this relief; 2) the View Preservation application does not comply with the Guidelines; and 3) Irrespective of whether the residency and the compliance of the application requirements are met, a view has to be significantly impaired before the relief applies. She explained that this property is actually owned by an LLC and the owners of the LLC live in Newport Beach. She felt that was relevant because all of the language in the purpose of the Ordinance and the preamble of the Ordinance speak to the purpose of the ordinance is to preserve views so they can be enjoyed. She did not feel an LLC can enjoy a view and these nonresident owners have not been at the property and are not enjoying the view. Secondly, she stated the staff report jumps back and forth between the language for view preservation and view restoration. She stated that in order to have a View Preservation application one must submit documentation, and that documentation requirement is defined by the Guidelines. She stated the pictures submitted are from 1991, however they do not accurately depict the view from the property owner's viewing area, as required in the Guidelines. She noted the living room and deck are on a different elevation from the dining room and the kitchen. She stated staffs picture is taken from the dining room. Therefore, she felt the documentation requirement is not met and the application cannot proceed. She stated that if the View Preservation Permit application cannot proceed the View Restoration Permit remedy comes into play, however the View Restoration Permit is limited to residents, per the Code. Finally, she stated there still has to be a significant view impairment to the applicant. She stated it will be the Planning Commission's determination as to whether these trees cause a significant view impairment. She noted that the procedures must be followed and all of the findings be met. She did not think all of the findings could be met in this case. She stated the trees are community assets and are available for all of the residents to enjoy. She felt the HOA has tried to accommodate the homeowners, even though they do not live in the area and are not part of the community. She felt that picking and choosing among the statutory language to find a position to favor the applicants disfavors and is unfair to the remaining people who are residents of the community. Commissioner Emenhiser asked Mrs. Campbell is she was on the HOA Board. Mrs. Campbell answered that she is not currently on the Board, however has lived in this community for 30 years and held every Board position available. She noted that she is speaking on behalf of the HOA Board. Chairman Tomblin noted the property is currently for sale, and asked Mrs. Campbell what the Board's position would be if the new owners live in the house and want to pursue the View Preservation process. Planning Commission Minutes December 13, 2016 Page 8 Mrs. Campbell explained that the View Preservation process would not be available to the new owners because they will not have the required pictures and documentation. She felt the best remedy was the one suggested by the HOA, which is a bond. The agreement would be that the HOA would cut the trees as requested, but if they die the property owner would then responsible for them. She also pointed out that the HOA also has a process and that the next scheduled meeting is on January 12th. She stated she is in no position to make any decisions on behalf of the Board. Commissioner Leon stated that the issue before the Commission is the decision to uphold the Director's decision or to consider several options that have been proposed. He stated one option that was of particular interest to him was the option where trees 6 and 7 are removed along with some subsequent trimming. He asked Mrs. Campbell if she were to weigh the alternatives between the Director's decision and that solution, would she take one or the other, or neither. Mrs. Campbell believed the Planning Commission has the duty to act in the City's best interest. She believed if a non-compliant application is submitted, with actual knowledge on the part of the City that it is non-compliant, that it is not in the City's best interest to approve that application. She believed there are remedies available to balance the interests in favor of the parties, but because this is a View Preservation Permit application, that the remedies for the View Restoration Permit which include mitigation at the beneficiary's expense are not considered. She felt such remedies might be amenable to the HOA, however she could not make that decision for the Board. Vice Chairman Cruikshank noted a document provided that was an addendum to offer to purchase and deposit receipts. In the document there is a discussion on view obstruction and keeping the common vegetation maintained at such intervals so it does not unreasonable obstruct a view. He asked how often these particular trees were maintained and was the intent considered when regular maintenance was occurring. Mrs. Campbell stated the Association trees are trimmed every year. She stated there are trees throughout the community, and the Board has a sensitivity to the community for unreasonable view obstructions. She noted she has lived in this community for 30 years, and in that time two view obstruction requests have been submitted to the City, and both have involved lots which did not pay the lot premium and seeking to improve their view at the expense of the Association. Vice Chairman Cruikshank asked if there were still some compromise or something the HOA would be willing to do, versus removing all of the trees or doing nothing, that might help remedy the situation. Mrs. Campbell stated her personal opinion was yes, again noting that she could not decide anything for the HOA as all decisions must go to the Board. Commissioner James asked Mrs. Campbell to explain the photos she distributed to the Commission. Planning Commission Minutes December 13, 2016 Page 9 Mrs. Campbell explained that the photos show that she once had a totally private back yard and now she does not because of the removal of the one tree and the severe trimming of the other trees. She explained she attempted to show this in the photos. Commissioner James stated that if there is currently no privacy in the rear yard, he questioned how their decision could further impinge upon her privacy, and how that should be a factor in their decision. Mrs. Campbell answered that privacy is one of the mandatory findings. Chairman Tomblin referred to the superimposed photo from Mrs. Campbell and asked her to explain the significance of the red line. Senior Planner Alvarez answered that staff provided the photograph used by Mrs. Campbell as part of the Notice of Decision to the tree owners to show how the trees have encroached into the 1991 view the applicants once had and to show where the roof lines are in respect to the actual trees. Mrs. Campbell referred to page 33 of the staff report, stating the photo of the non- compliant view was taken from the applicant's dining room. She stated the Code defines the viewing area, and there can only be one viewing area. The City has said the viewing area is the living room and the deck. The dining room is on a higher elevation than the living room or the deck. Therefore the picture gives a more favorable impression of what the view is from the dining room. Chairman Tomblin asked staff to clarify the photo location on the display. Senior Planner Alvarez stated the photo in question was taken from the deck area, which staff has defined as a viewing area. Chairman Tomblin referred to the superimposed photo and asked staff if a certain area showed the current height of the trees. Senior Planner Alvarez stated that the current height of the trees are faintly shown on the photo. He explained that staff used special software to superimpose the 1991 photograph, which was taken in front of the living room on the deck with a photo staff took from the same position to photograph the current conditions. Mrs. Campbell asked staff if that meant they took a photo taken from the deck and superimposed a photo taken from the dining room onto it. Senior Planner Alvarez stated that was not correct. He clarified that six photographs were taken by the applicant to document the view, five of which were taken from the deck area. He stated that Mrs. Campbell asked staff to look at the sixth photograph, which he noted was not used in the Notice of Decision, and verify this photo was taken from the dining Planning Commission Minutes December 13, 2016 Page 10 room. He further explained that the viewing area can be taken from all rooms, as long as it is the same view. He stated that from the dining room the view is the same as from the living room and the deck. He stated that while there may be a dining room view, it is not the sole viewing area. The City can take views from different areas, as long as it is the same view. In this particular home it is the same view. He explained that for this application, because the applicant supplied the City with photos of a panoramic view from 1991, and because the location of the living room and the deck are more natural viewing areas, the City defined the viewing areas as the living room and the deck. Director Mihranian added that staffs position is that the best and most important view is taken from the living room and deck area, which are at the same elevation. The photo documentation provided by the applicant from 1991 was verified by staff as the deck and living room area, and that is what the superimposed photo is representing. He acknowledged that photo 6 in the staff report was taken from the dining room, and that is what is stated in the staff report. He noted staff's decision was not based on photo 6. Mrs. Campbell stated that staff cannot pick and choose language from the Code, and the documentation has to come from a certain place on the property or it can't be used. She questioned where the photo was taken in regards to trees 6 and 7. She did not think all of the pictures were taken from the deck, but admitted she could not prove that. Frank Attenello read from the Guidelines that any resident owning a residential structure with a view may file an application for view restoration permit. He stated that in this particular case the owner of the residential structure is not a resident of Rancho Palos Verdes, and the house has been vacant for almost 15 years. The applicant now wishes to sell the property and has allowed real estate brokers to inappropriately participate in the City process and to put forth exaggerated claims of view obstruction in an effort to increase the home's listing price at the expense of the residents of the community. He felt that trimming the pine trees will significantly impact the privacy of at least two residents. He stated that a certified arborist and a professional landscape consultant have told him that trimming the pine trees will result in the death of the trees, and the loss of these trees could potentially make the slopes these trees are planted on unstable and cause a landslide. He stated that a required finding is that removal or trimming of trees will not cause an unreasonable infringement of privacy with greater weight to be given to protecting outdoor privacy. He felt this finding was completely ignored by staff. He disagreed with the Director's determination that the pine trees create a significant view impairment from the viewing area of 59 Paseo de Castana, and appealed to the Planning Commission to overturn the Director's decision. Mary Spiegel explained she was the Chairman of the ARC and President of the HOA when the view obstruction was first presented. The ARC decided at that time the view was unreasonable obstructed. Therefore, two trees were removed and seven others were topped to the absolute maximum limit they could be trimmed without being killed. She stated the ARC felt this was a reasonable compromise. However, the owners of the property wanted more view, and the ARC did not feel there was more to give. She was Planning Commission Minutes December 13, 2016 Page 11 concerned that the HOA rights were not being balanced with the applicant's request and rights. Commissioner Nelson asked Ms. Spiegel if she felt the height of the current trees caused a view obstruction of the harbor. Ms. Spiegel stated there is a view obstruction, however that is not the requirement. She felt the question should be is the obstruction significant or unreasonable. Chairman Tomblin asked Ms. Spiegel what ARC stands for. Ms. Spiegel clarified it was the Architectural Review Committee, which is a required three member committee per the CC&Rs. Commissioner James asked Ms. Spiegel if there is a definition in the CC&Rs that talks about whether Association property is considered another lot. Ms. Spiegel answered that Association property is not defined in the CC&Rs. She stated the Association does not consider the common area as a lot, as the lots are the residences. Vice Chairman Cruikshank asked if there was a certain threshold where the ARC was willing to go in regards to these trees. Ms. Spiegel explained the ARC felt they had removed what was considered unreasonable obstruction, and lowered and laced the remaining trees to the maximum level where they could survive. She explained that the existing height of the trees is not unreasonable because the rooflines of the houses blocks the view three feet below the canopy. Opinions from arborists state that lowering the trees the additional three feet will kill those seven trees. Commissioner Leon stated that from the applicant's property it looked to him like a hedge has been planted that was above the rooftops of the houses and was continuous across the entire back of the lot. He asked if there were other areas in the community where there is a similar situation where there are community trees that go from lot line to lot line across a single lot. Ms. Spiegel answered that on a lower street there is the same situation, and again it was not considered unreasonable because there is a row of rooflines behind the trees. Chairman Tomblin asked if there was a maintenance or tree trimming schedule in place when she was on the ARC. Ms. Spiegel answered that there was and still is a trimming schedule in place. She stated that there is a yearly trimming cycle in place. Planning Commission Minutes December 13, 2016 Page 12 Chairman Tomblin asked Sean Bennett to come to the podium and verify that there is a trimming schedule in place. Sean Bennett stated the tree trimming happens routinely in the area and money is in their budget to do so. Chairman Tomblin asked Mr. Bennett his opinion on the survival of the trees if cut to staff's recommendation. Mr. Bennett responded that there is a very high percentage that the trees would die if cut further. He stated he was given instructions to trim as far as he could, which he did, and that is what one sees at the site today. Commissioner Nelson asked Mr. Bennett if he felt there was any way to restore the 1991 view with these trees. Mr. Bennett did not think that was possible, as the tree trimming and maintenance would be too severe to the trees. He added it would be possible to keep the trees at their current height. Commissioner Leon asked if the trees would be harmed if they were laced to look like individual trees as opposed to a wall of vegetation. Mr. Bennett stated he would have to look at each individual tree to be able to answer that question, however he felt a lot of vegetation would have to be removed to do so. He stated that conifers such as these typically do not take well to trimming a lot the sides. Vice Chairman Cruikshank referred to a letter from the City's Consultant where they state the trees are not necessary for slope stability. He asked Mr. Bennett if it was his opinion if these trees are needed for slope stability. Mr. Bennett answered that the pine roots are on the surface and do add stabilization. Vice Chairman Cruikshank understood, however he asked if the trees were removed would the slope then become unstable. Mr. Bennett suggested a geologist be consulted at that point to answer that question. Vice Chairman Cruikshank asked if these trees could be boxed and removed or if they had to be cut down. Mr. Bennett answered that it is possible the trees could be moved. Lawrence Baker stated he participated in drafting the appeal submitted by the HOA and he has submitted his own comments to the Commission. He felt the arguments are well stated in writing and hoped the Commission takes the time to thoroughly examine those Planning Commission Minutes December 13, 2016 Page 13 arguments. He disagreed with staff's and the City Attorney's interpretation of a resident being a property owner. If this is the case, he stated that this flies in the face of case law and statutes in the State of California that define what a resident is. He felt the Commission should consider a resident as one who actually lives at the property. He felt that from the applicant's perspective the issue is not about views but rather about money. The applicant has had their property listed for sale several times and they have been led to believe by their realtor that their selling price will increase if they can get the trees trimmed down to the level recommended by staff. He disagreed with the realtors opinion, as once the trees are trimmed there will be dying and ultimately dead trees. He felt the HOA has provided an adequate remedy for the applicants in the alternatives they have suggested. Commissioner Nelson asked Mr. Baker if he believed these trees caused a view obstruction to the applicant. Mr. Baker believed there is some obstruction of the view, but whether or not that is an unreasonable or significant obstruction is a matter of judgement. The judgement of the ARC and other residents believe the view is not significantly or unreasonably obstructed. June Kobayashi (in rebuttal) stated she was very sorry that picture No. 6 has caused so much controversy. She explained the reason she submitted that one photograph, which is not actually part of the view, was to clearly show some of the vegetation was not trees but rather were bushes. She acknowledged the picture was taken from the dining room, but did not intend for it to be used to demonstrate the view. Secondly, she explained her broker is a personal friend, has knowledge of the vegetation and the view, and has not tried to influence her in any way in regards to the trees. Chairman Tomblin asked Ms. Kobayashi to clarify ownership of the property. Ms. Kobayashi explained that the LLC is comprised of two people, her husband and herself. She stated the LLC was formed for tax purposes and for estate planning. Director Mihranian referred the Commission to Municipal Code Section 17.96.1330 for the definition of owner, and read that definition. He noted the definition does include partnerships or corporations. Kathy Campbell (in rebuttal) stated that the statutory language of the view restoration code and the guidelines talk about resident owners of residential property. She referred to pages 151 through 153 of the staff report, noting the photos submitted that are non- compliant documentation for the View Preservation Permit process were taken in 1991. In 1995 homes were constructed below the foliage that is the subject of this application, and therefore cannot possibly be shown in the 1991 photos since they didn't exist. Chairman Tomblin closed the public hearing. Planning Commission Minutes December 13, 2016 Page 14 Commissioner James noted that Mrs. Campbell just stated that the homes behind the foliage of the 1991 photo could not have been there, since they were not built until 1995. He asked staff to comment. Senior Planner Alvarez stated the applicant's 1991 documentation photographs show the view above the rooftops of homes. Subsequent to the photographs being taken in 1991, currently here has been some development on the periphery into what would have been a view. Nonetheless, whether the homes were built before or after 1991, there are views above the rooflines. Staff is trying to preserve the views above the rooftops. He added that the pictures submitted for documentation were taken in 1991, noting the photos are date stamped with a 1991 date and the applicant has attested to the fact they were taken in 1991. Chairman Tomblin re-opened the public hearing for some clarification. Commissioner James asked Mrs. Campbell to clarify her point concerning construction developments in 1991 or after. Mrs. Campbell clarified that right after the 1991 photos were taken, homes were constructed in the upper right corner. Chairman Tomblin closed the public hearing. Commissioner James noted the code defines owner to include corporations and LLCs, but there is no definition of resident, he asked if it was significant that the code doesn't use the word owner, given there is a defined term that could have been used in this code section. Assistant City Attorney Burrows stated the word owner is used repeatedly throughout the Ordinance. Director Mihranian added that when reading through the Ordinance and the Guidelines, the term property owner and resident appear to be interchangeable. He pointed out that in the ballot measure that the voters voted on it says that the Ordinance is to protect, enhance, and perpetuate views available to property owners and visitors. He displayed the actual ballot measure on the overhead. Commissioner James appreciated the clarification, noting that it was important that there be consistent interpretation by staff. Chairman Tomblin asked if the Commission could insert language that the applicant in this case do something to help restore the privacy to the surrounding properties. Senior Planner Alvarez stated that this Commission has historically addressed view restoration issues, where it was in their purview to order the replacement of trees. Planning Commission Minutes December 13, 2016 Page 15 However, this is a View Preservation case where it is not in the Commission's purview to order the applicant to compensate the tree owner with replacement trees. Commissioner Leon pointed out that both the Code and the Guidelines have significant enhancements of the Proposition which are not in the actual Proposition, specifically the idea of significant view impairment versus view impairment. He stated that both the Proposition and the code have the concept of resident. He stated the Commission must make certain findings in this case, and whether or not the applicant is a resident is not one of the required findings. Therefore he questioned whether or not residency is something the Commission can consider in making their decision. Assistant City Attorney Burrows explained that if the Commission finds the View Preservation Permit process is unavailable to non-residents, then they can make that finding. This would be appealable to the City Council. She also felt an applicant to file an action in court and ask a court to determine what the intent of the Ordinance is. She further explained that the View Restoration Committee proposed Guidelines, and was authorized to do so under the Ordinance. The City Council affirmed those Guidelines. Those Guidelines are what is governing this discussion, which is the interpretation of the Ordinance. She stated the Guidelines do not limit this process to a resident. Commissioner Nelson asked if any of this has been tested in court. Assistant City Attorney Burrows answered the View Ordinance has been challenged and was upheld. She explained the main issue was whether it was in the City's police power to govern and regulate views. Commissioner Nelson moved to remove all of the trees in question. The motion died to a lack of a second. Commissioner Leon stated that he viewed the trees from the Campbell's property and he felt the trees significantly obscured the views of their lot from other properties. He felt this then introduces the argument of what is considered reasonable privacy or significant. He felt that everyone would agree that removal of those trees exposes them more than having the trees there, but questioned if that was reasonable. Commissioner Leon moved to remove all of the trees and the applicant pay for some suitable foliage that within a short period of time will protect the privacy of the Campbells, seconded by Commissioner Nelson. Commissioner Bradley explained that while at the property he struggled with being able to establish a significant view impairment for the trees more on the left side of the view. He felt that the view behind trees 5, 6, and 7 cause more obstruction through that view area, and could see that area needing trimming. Planning Commission Minutes December 13, 2016 Page 16 Commissioner Bradley moved a friendly amendment to stagger the removal of the trees rather than removing all of trees at once. Commissioner Leon accepted the friendly amendment, seconded by Commissioner Nelson. Commissioner Emenhiser stated that in 1989 the citizens of Rancho Palos Verdes chose views over trees. Therefore, whenever this type of issue comes before the Planning Commission somebody is going to lose a tree. He did not care whether or not the Kobayashis are residents or not, they are certainly property owners. Further, when the HOA cut the trees, much of the Campbell's privacy was already lost. He felt that Commissioner Bradley was on the right track with staggering the removal of the trees, and suggested that trees 1 and 2, 4 and 6 be removed to open up the views, with an opening that the Director select the four trees that will best preserve the privacy for the Campbells and open the views for the Kobayashis. Chairman Tomblin asked if this was an amendment to the motion. Commissioner Emenhiser moved to amend the motion to recommend the removal of tress 1, 2, 4, and 6, but to give the Director the discretion to select the trees that would most open up the view and preserve the privacy. Commissioner Leon explained that his intent would be to have the trees be individual trees rather than a block of trees in one area and a block of trees in another area. He was not sure he had enough detailed information or knowledge about the trees and the individual branches to make that choice. He agree that some of the trees could stay, and the intent is, if possible, shape the trees so that there are spaces in between so that they do not appear hedge-like. Commissioner Emenhiser moved to amend the motion to direct that four of the trees be cut, and the selection of the trees be made by the Director. Commissioner Bradley agreed to the amendment, as did Commissioner Leon and Commissioner Nelson. Commissioner James stated if the Commission finds there is a significant view impairment to the Kobayashis there is no duty on their part to replace trees. While the Commission may feel this is equitable, he did not think crafting a compromise was the Commission's duty in this case. He was also confident that it was not the Commission's duty to dump the decision back on the Director and task him with selecting the trees to be removed. He asked the Director if there was any time limitations on this application. Director Mihranian answered that this case is not subject to the Permit Streamlining Act. Commissioner James suggested this item go back to the applicant and the HOA to consider all of the comments made by staff and the Commission to see if they can work out a compromise. He felt that if the Commission finds this view impairment to be significant, the Code is pretty clear on what should be done. He recognized the parties Planning Commission Minutes December 13, 2016 Page 17 have already gone through mediation, so he would not be surprised if one or the other party refused further mediation and requested the Commission make a decision. Vice Chairman Cruikshank also did not feel it was right to direct the Director to go back and make the decision on what trees should be removed. He stated the applicant was willing to have trees 6 and 7 removed, which would be less extreme than taking all seven trees out. He questioned if having all 7 trees removed would work for either party. Director Mihranian understood that the Commission would like to see the removal of some trees as well as keep some trees, as there is a privacy issue to be considered. He therefore recommended the Commission give staff direction, and continue the public hearing to the January 10th meeting. This will allow staff to work with the applicant and appellant to identify those four trees, and for staff to come back with the Commission with a report memorializing this. Chairman Tomblin supported this idea, and asked the Commission for comments. Commissioner Emenhiser stated the two parties have been through mediation, the Kobayashis have photographic proof that they have lost their view, and to continue this issue and in two months' time when the parties still haven't agreed to come back to the Commission and hear several hours more of testimony was not an efficient use of time and resources. He therefore would not support the Director's suggested continuance of the hearing. Vice Chairman Cruikshank stated that he would have to vote no if the decision on what trees to remove is left to the Director. He felt the Commission as a body should give the direction. He stated he would recommend the removal of trees 6 and 7, with the additional removal of tree 1 and one of the trees in the middle to thin the area out. Commissioner Leon suggested removal of a minimum of four trees, which must include trees 6 and 7, with the applicants paying for replacement foliage. The removal of the trees to have concurrence between the applicants and the appellants. He added that he felt there is a privacy infringement that somehow needs to be mitigated. Chairman Tomblin stated he could not make mandatory finding E in reference to the privacy issue. He also felt the applicants, by Code, have a view and have a right to have that view. He referred to a chain of emails that were included in the staff report, specifically an email from the applicant in which she noted the listing of her home is on hold since potential buyers want to see for themselves what the actual views from the ground floor will be. She stated the views, or lack of, have a substantial impact on its value and appeal. He stated that when the City approves the building of a new home, the impact to the neighbors' views and privacy issues are very much looked at and considered. He felt that the applicant is entitled to their view, however removing or trimming the trees cannot result in carnage left behind to the neighboring homeowners. Because he cannot make finding E he cannot support staff's recommendation. He stated there is a precedence where trees have been removed and replaced at the applicant's Planning Commission Minutes December 13,2016 Page 18 expense. He stated he would be in favor of making a decision tonight, but would also be in favor of continuing the public hearing to allow the parties to continue discussion, knowing the applicant may be required to replace foliage to help protect the Campbell's privacy. Vice Chairman Cruikshank asked staff to clarify where the privacy issues are on the Campbell property. Chairman Tomblin noted that the two trees that were previously removed by the HOA gave an expansive view to the Campbell's rear yard. He also felt the applicant should have taken action earlier to make this view happen, as this vegetation has laid dormant for many years. He felt that if the issue had been addressed years earlier, the trees would not have been killed and there may not have been this privacy issue. Commissioner Emenhiser requested staff read back the proposed motion. Director Mihranian stated the current motion is to remove a minimum of four trees and have the applicant pay for new foliage to maintain a degree of privacy the second floor windows and backyard pool area of the Campbell's residence. Commissioner Leon asked staff what four trees they would recommend removing. Director Mihranian suggested removal of trees 1, 3, 6 and 7. He felt in their place the Commission could require some replacement foliage to balance the privacy concerns. He suggested the Chairman reopen the public hearing to ask the applicant and appellant how they felt about this option. Chairman Tomblin reopened the public hearing. Mrs. Kobayashi asked the Commission what kind of replacement foliage they are suggesting. Director Mihranian responded that staff would work with the applicant to select suitable replacement foliage, noting it does not have to necessarily be trees. Mrs. Kobayashi stated she was agreeable to staff's suggestion to remove trees 1, 3, 6, and 7. Director Mihranian added that the replacement of the foliage would be at the applicant's expense, and asked Mrs. Kobayashi if she was agreeable to that. Mrs. Kobayashi stated she would agree to providing replacement foliage if the trees are to be removed, but felt the cost of the removal should be shared with the appellant. Director Mihranian clarified that the Kobayashis would not be responsible for the expense of the removal of the trees. Planning Commission Minutes December 13,2016 Page 19 Mrs. Campbell stated she would not reject the suggestion outright, as it is an HOA Board decision, and the next HOA Board meeting is January 12. She suggested that rather than identify trees 1, 3, 6, and 7 for removal, it might be better to leave the decision to the appellant and applicant to come to a decision on removal. She stated it could turn out that removal of tree No. 4 might be a better choice than tree No. 3 and therefore it might be better left to the parties to work out which trees should be removed. Secondly, she questioned the replacement foliage noting that taking out a 40 year old mature tree could not adequately be replaced by a 24-inch box size tree. Chairman Tomblin asked Ms. Campbell, as the homeowner most affected, if this was a decision that she personally could accept. Mrs. Campbell answered that she did not want to see four trees removed, however she stated she was open to the process. She felt the parties can move forward in good faith and suggested the Commission put a time limit on the parties reaching a compromise. Commissioner Nelson suggested the motion read removal of trees 1, 3, 6, and 7 or as the parties agree within 90 days. Looking at the Commission's future schedule, Director Mihranian suggesting continuing the public hearing to February 14, 2017. Chairman Tomblin closed the public hearing. Commissioner Emenhiser noted that the HOA Board could call for an emergency meeting prior to January 12th Commissioner Nelson asked staff to read back the current motion. Director Mihranian stated the current motion is the HOA shall remove trees 1, 3, 6, and 7 and the applicants shall provide replacement foliage to provide privacy to the second floor windows and the backyard pool area on the property located at 12 Paseo de Pino. Commissioner James agreed that there was no reason the HOA Board could not ask for a meeting prior to January 12th, and this was something he felt they might think was important enough to schedule an emergency meeting. He was in favor of giving the parties as much time and leeway needed to make a decision. The motion as read by the Director failed, (2-5) with Commissioners Nelson, Leon, James, Vice Chairman Cruikshank, and Chairman Tomblin dissenting. Commissioner Nelson moved the removal of trees 1, 3, 6, and 7, however the parties may adjust the exact trees to be removed. The applicant will supply replacement foliage, however that replacement foliage shall not interfere with the view. The public hearing will be continued to February 14, 2017 at which time the Planning Commission Minutes December 13, 2016 Page 20 applicant and appellant will advise the Commission on which trees are to be removed, seconded by Commissioner Leon. The motion was approved, (6-1) with Commissioner James dissenting. Per the Planning Commission rules, Commissioner Nelson moved to continue the meeting past 11:00, seconded by Commissioner Leon. Approved without objection. NEW BUSINESS 3. Green Hills Memorial Park Annual Compliance Review Status Report (Z0N2003-00086): 27501 Western Avenue Director Mihranian presented the staff report, explaining at the November 29th meeting the Commission discussed the review of the Annual Compliance Review and directed staff to come back with a status report on who is to conduct that review. As a result, the City Manager and the City Attorney met with the City Council in closed session and the general consensus of the Council was that, consistent with the Municipal Code, the annual review should be held at the City Council level. He stated the City Manager's office is working on scheduling that meeting with the City Council and a tentative date has been set for January 31st. He stated that as soon as the date has been confirmed a public notice will go out. He stated that if the meeting is held on the 31st it will be a special meeting solely dedicated to the Green Hills item. Commissioner Emenhiser congratulated the City Council on their action, as he felt this issue has needed to be at their level for quite some time. Secondly, he hoped staff would present to the City Council a more accurate, updated overhead photo of the area than the one presented to the Planning Commission at the last hearing. Chairman Tomblin asked if the Commission will still have the Inspiration Slope appeal before them. Director Mihranian stated that appeal hearing was continued to January 24th Chairman Tomblin opened the public hearing. Noel Weiss felt the thoughtfulness, thoroughness, and fairness of the Commission in regards to Green Hills has been apparent. He felt it was unfortunate the review was going to the City Council, has he did not think they would get this type of thorough review from the City Council. He also felt that the history is that the politics in regards to Green Hills was such that Green Hills feels they can get a better result in front of the City Council. On the issue of lawlessness, he felt the City is picking and choosing which laws will be abided by. Specifically, he referenced the review provisions that were put forth by the City Council in 2015, which says the project shall be reviewed by the Planning Commission annually. He stated the City Council could have changed this condition, but Planning Commission Minutes December 13,2016 Page 21 they didn't. He referred to the closed session meeting referenced by the Director, and stated this closed session was never announced by the City Attorney, they met behind closed doors, and there is nothing official or lawful that the City Council did that took away the jurisdiction given to the Planning Commission. Vice Chairman Cruikshank asked Mr. Weiss to briefly explain the handout he passed out to the Commission. Mr. Weiss explained the handout is a support for the January 2000 Master Plan that lays out by each area the grading limitations, controls, and conditions for each area. He added that at a previous meeting staff stated they look at the gross total of grading done at the site and this handout demonstrates grading has to be done by evaluation of each area. Sharon Loveys discussed the grading and read from a document that Green Hills is already over on their grading quantities. She also referred to the Lilley Report dated January 2015 and read their opinion that Green Hills acted in bad faith throughout the development of the project site, and their opinion that it is somewhat surprising that the level of scrutiny and review was not carefully monitored at all professional and management levels. She hoped the City Council takes this report into consideration when dealing with Green Hills. Commissioner Nelson stated it was upsetting that a representative from Green Hills is not present at this meeting, noting that they very rarely attend these public hearings when they are on the agenda. Debbie Landis referred to the November 2014 Planning Commission Resolution where the Commission asked for maps from Green Hills depicting the location of the current proposed internments within the cemetery property, which was never done. She stated this requirement was taken away by the City Council. She too acknowledged the work of the Planning Commission over the years on this site and felt the Commission's knowledge was needed in doing the compliance review. Chairman Tomblin closed the public hearing. Commissioner Leon commented that he recently attended a funeral in Lompoc and noted that the casket and the service took place at a dedicated area of the cemetery and only the family and selected friends were allowed to the graveside for the internment. He felt this practice at Green Hills would solve quite a few of their problems. Commissioner Leon moved to receive and file the report, seconded by Commissioner Bradley. Approved without objection. ITEMS TO BE PLACED ON FUTURE AGENDAS 4. Pre-Agenda for the meeting on January 10, 2017 Planning Commission Minutes December 13, 2016 Page 22 The pre-agenda was unanimously approved as presented. ADJOURNMENT The meeting was adjourned at 11:27 p.m. Planning Commission Minutes December 13,2016 Page 23