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8/27/2012MINUTES OF A REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF ROLLING HILLS, CALIFORNIA MONDAY, AUGUST 27, 2012 CALL TO ORDER A regular meeting of the City Council of the City of Rolling Hills was called to order by Mayor Black at 7:30 p.m. in the City Council Chambers at City Hall, 2 Portuguese Bend Road, Rolling Hills, California. ROLL CALL Councilmembers Present: Heinsheimer, Lay, Pernell, Mayor Pro Tem Hill and Mayor Black. Councilmembers Absent: None. Others Present: Anton Dahlerbruch, City Manager. Mike Jenkins, City Attorney. Yolanta Schwartz, Planning Director. Heidi Luce, Deputy City Clerk. Tina Greenberg, 32 Portuguese Bend Road. Harold Light, Attorney (for Greenberg). Curtis and Pamela Reis, 1 Wagon Lane. Leslie Stetson, 71 Saddleback Road. Carla Routt, 1 Southfield Drive. Bea Dieringer, 7 Buggy Whip Drive. Lynn Gill, 31 Chuckwagon Road. Richard Colyear, 35 Crest Road West. CONSENT CALENDAR A. Minutes - (1) Regular Meeting of August 13, 2012 and (2) Adjourned Regular Meeting of August 20, 2012. RECOMMENDATION: Approve as presented. B. Payment of Bills. RECOMMENDATION: Approve as presented. C. Financial Statement for the Month of July, 2012. RECOMMENDATION: Approve as presented. D. Allied Recycling Tonnage Report for June and July, 2012. RECOMMENDATION: Receive and file. Councilmember Heinsheimer moved that the City Council approve the items on the consent calendar. Mayor Pro Tem Hill seconded the motion, which carried without objection. PRESENTATION County of Los Angeles Older Americans Recognition Day Certificate Presentation to Don Crocker On behalf of Los Angeles County Supervisor Don Knabe, Rebekah Kim presented Mr. Crocker with a Older Americans Recognition Day certificate in recognition of all the does in the community. COMMISSION ITEMS None. PUBLIC HEARINGS VIEW IMPAIRMENT APPEAL OF RESOLUTION 2012-03-CTV BY MRS. CHRISTINE GREENBERG, 32 PORTUGUESE BEND ROAD REGARDING THE REMEDIATION OF A VIEW IMPAIRMENT COMPLAINT FILED BY MR. AND MRS. CURITS REIS, 1 WAGON LANE. Minutes City Council Meeting 08/27/12 BE Mayor Black introduced the item and asked for staff's comments. City Manager Dahlerbruch reviewed the background on the appeal stating the property owner at 32 Portuguese Bend Road, Mrs. Greenberg filed an appeal of Committee on Trees and Views Resolution No. 2012-03-CTV in reference to a view complaint filed by Mr. and Mrs. Reis at 1 Wagon Lane. The public hearing started on July 23, 2012 with an overview of the case where each party gave detailed public comments of their position. That meeting was continued to August 20, 2012 at which time the City Council held a field trip at 1 Wagon Lane and 32 Portuguese Bend Road at which time the City Council went into the residence at 1 Wagon Lane at the request of the homeowner to see the orientation of the house toward the view and then proceeded to the patio which the Committee on Trees and Views determined to be the view site. The City Council then went to 32 Portuguese Bend Road and walked the property looking at trees. The visit concluded inside the house at the request of the homeowner with a viewing of a wall mural depicting the Eucalyptus trees bordering the property. Mr. Dahlerbruch stated that tonight the City Council will need to establish the view site and determine if there is a significant view impairment. If there is, the City Council will then determine how to remediate the view impairment balanced against Mrs. Greenberg's right for enjoyment of the property and privacy. The City Council may adopt or modify the Committee on Trees and Views resolution, direct staff to bring a different Resolution or remand the case back to the Committee. As further background, City staff identified for the Committee a total of 108 trees among over 200 on the five -acre property at 32 Portuguese Bend Road that potentially obstructed the view. The Committee considered several different alternatives for remediating the view impairment having established that there was a significant view impairment. Ultimately, the Committee adopted the resolution that has been provided in this packet. Included as Attachment 3 is a correction to the original arborist report that erroneously included trees 43-47 and Attachment 2 is a supplemental report addressing many of the issues raised in the appeal and removing trees 80 ant 81 from the list of trees for remediation. City Manager Dahlerbruch further reviewed the staff report noting that since distribution two additional correspondence were received and have been placed on the dais; and this evening, Mrs. Greenberg's attorney submitted additional information that has also been placed on the dais and made available to the public. Planning Director Schwartz then reviewed the case stating that at the onset of the proceedings, staff determined that the project would be subject to the California Environmental Quality Act (CEQA) based on the Committee's first indication in the field and in review of the application. Staff prepared a Mitigated Negative Declaration enumerating some of the measures that should be taken should some trees be removed, cut, trimmed or topped. Subsequently based on the Committee's direction to prepare a Resolution with more aggressive remediation action based on Mrs. Greenberg's recommendation staff readdressed the Mitigated Negative Declaration, strengthened some of the mitigation measures, recirculated it to the proper agencies and then returned it to the Committee for consideration. Upon further review of the case, the Committee did not adopt the first resolution and instead adopted a Resolution with different remediation and restorative actions than originally proposed. It is staff's opinion that the initial study and Environmental Mitigated Negative Declaration that was prepared for the Committee on Trees and Views would be applicable to any action that the City Council might take and that a new Mitigated Negative Declaration would not be required because the MND is based on the more aggressive action which included removal of 89 trees. She stated that the appellant has challenged many of the issues related to the CEQA review and the City's determination and interpretation of CEQA. The City Attorney's response to those challenges is included in the staff report. Councilmember Pernell reported ex parte communication with Mrs. Greenberg as an effort to avoid conflict. Councilmember Lay also reported ex parte communication with Mrs. Greenberg as an attempt to find resolution without conflict. City Attorney Jenkins reviewed the history of View Ordinance to provide perspective. The View Ordinance was adopted in 1988 after several hearings before the Planning Commission and City Council at which there was public testimony by many residents. The Ordinance was written to protect the views that exist from a piece of property. An inherent part of a property is the view that is capable of being achieved from that property but for the existence of vegetation. Any other interpretation of the Ordinance is not correct because it reflects an alternative view that is not supported by the record of the proceedings before the City Council and its Planning Commission. In 24 years of application since the Ordinance was adopted, the same process has been employed in each case brought before the City and the parties have been treated in same manner using the same process. Over that 24 years, there were six Minutes City Council Meeting 08/27/12 -2- cases that were not resolved privately and were ultimately resolved by either the Committee on Trees and Views or the City Council and the number of trees affected is negligible. The case currently before the City Council differs from the others in only one respect and that is the magnitude, the size of the property and the number of trees on the property. This process is an exercise of the City's land use powers that stem from Article 11 Section 7 of the Constitution which grants the City its police powers and grants authority to regulate the character of the community through the General Plan and Zoning Laws. There is no problem with exercising the police powers in such a way that may change the value of land and those regulations are permissible. The City Council's actions are governed by clear and accepted legal standards — is there substantial evidence in the record of the proceedings to support the decision. At 7:57 p.m. the City Council took a brief recess to review material submitted by the appellant this evening. Mayor Black called the meeting back to order at 8:03 p.m. Harold Light, Attorney addressed the City Council on behalf of Mrs. Greenberg. He requested that the City Council continue the matter to give Mrs. Greenberg an opportunity to fully examine and analyze the material in the staff report, specifically the newly created supplemental report that was prepared by Mr. Lorenzen given that it was not provided to her until late in the day on Friday. Mayor Black responded that the City Council will continue with the public hearing after which time they will determine how to proceed. Mr. Light further requested that he be allowed sufficient time to present his client's position. With regard to the supplemental report, Mr. Light expressed his concern that the report does not meet the requirements of the contract in that it does not provide sufficient visual documentation nor specific actions to be taken on each tree. He expressed concern that many trees are subject to trimming and yet have not been measured to determine current height. He suggested that each tree be assessed individually and a photographic record be created. He asked that the photograph that was distributed at the field trip showing a line of site from the viewing area at 1 Wagon Lane be made a part of the record. Mr. Light reviewed the 29 trees that were purported by Mr. Lorenzen to have be subject to previous trimming and commented that 11 of those trees were killed under suspicious circumstances and the trees remaining are suckers growing out of stumps. He further commented that 15 of the trees suggested for removal because they are reported to be volunteers are not in any view. He further expressed concern about the trees that are proposed for crown reduction or topping and that such action would adversely affect Mrs. Greenberg's property. He commented that this situation cannot be compared to the Echevarrieta case in Rancho Palos Verdes because the view did not exist when the Reis' purchased their property. Mr. Light called into question the applicability of the photograph that Mrs. Reis supplied at the field trip commenting that it was likely taken from an area other than the designated viewing area. Mayor Black commented that the photograph is of a different view corridor. Mr. Light commented at length regarding the applicability of the View Ordinance and the proposed restorative action suggesting that the action would negatively impact Mrs. Greenberg's privacy and enjoyment of her property. He further commented regarding the CEQA review and mitigation measures suggesting that they are inadequate and further suggesting that an Environmental Impact Report should be prepared. Lastly, he suggested, as he has mentioned previously, that if the trees are trimmed, there still may not be a view because there are other trees on the properties beyond that may be blocking the view. Mrs. Greenberg, 32 Portuguese Bend Road addressed the City Council stating that she feels that the process has not been fair or balanced and that the Committee did not consider the portion of the ordinance that states "in no event shall restorative action be required if such action will adversely affect the environment or would unreasonably detract from the privacy and enjoyment of the property on which the vegetation exists" in its deliberation. She commented at length regarding the impact that Committee's action will be have on her property and suggested that the Reis' did not have a view when they purchased their property and may still not have a view if her trees are trimmed. She further commented that the trees along the corner of Wagon Lane and Portuguese Bend Road suspiciously died in 1997 or 1998 along with other trees and were cut down subsequently — what remains is sucker grown that grew back out of the stumps of the removed trees. She further commented on previous attempts to provide a view for the Reis' that resulted in the tree conditions as they exist today. She further suggested that a tree -by -tree report should be provided indicating the specific action on each of the trees. She further commented that she feels the proposed action will place a financial burden on her and devalues her property. Minutes City Council Meeting 08/27/12 -3- At 9:07 p.m. the City Council took a brief recess. Mayor Black called the meeting back to order at 9:14 p.m. Mr. Reis, 1 Wagon Lane addressed the City Council stating that he resents the implication that they poisoned trees; and he categorically denies that claim and would be willing to take a lie detector test. He also stated that although it is not relevant given the scope of the Ordinance, they did have a view previously which they realized after doing some trimming on their own property. He further commented that according to several real estate brokers, well-maintained trees preserve and enhance the value of a property and reviewed excerpts from AE Hanson's book about Rolling Hills which provides background regarding the character of the community and the importance its founders placed on views. Mayor Black then called for public comment and asked that comments be relevant to this specific case, not duplicative and limited to three minutes. Leslie Stetson, 71 Saddleback Road addressed the City Council commenting that having witnessed extensive litigation over a view dispute she feels there are no winners and as homeowners in an association in a private city residents are bound by the Ordinances and policies such as the View Ordinance which implements established laws to resolve the dispute through implementation of the established lawful process. She stated that she has knowledge of the view from the Reis' property and has watched it become obstructed over the past 15 years. Carla Routt, 1 Southfield Drive addressed the City Council commenting that in 1950 when she became a resident of Rolling Hills, the property at 32 Portuguese Bend Road was owned by the Dunaway's and had very large mature trees at that time. Bea Dieringer, 7 Buggy Whip Drive addressed the City Council to suggest that the City Council consider tabling the matter given that there is an initiative on the ballot regarding views and that the Planning Commission, at the City Council's direction, is reviewing the View Ordinance and investigating alternatives to it. She further suggested that it would be a more prudent use of resources to table the matter. Lynn Gill, 31 Chuckwagon Road addressed the City Council to request that the document he prepared and submitted to the Planning Commission regarding the sections in AE Hanson's book pertaining to the "curse of the lack of trees" be submitted to the City Council for their consideration. He further commented regarding the legality and constitutionality of the Ordinance. Richard Colyear, 35 Crest Road West addressed the City Council suggesting that to reduce potential litigation costs, the City should follow the example of the Rolling Hills Community Association Board and turn issues like this over to the parties involved and let them litigate it. Hearing no further public comment, the City Council began deliberating. City Attorney Jenkins suggested that the City Council consider the appellant's request for a continuance. Councilmember Lay commented that given Mrs. Greenberg's discussion of the item it appears that she has had a chance to read the material. Hearing no motion, the City Council continued its deliberation. Mayor Black stated that the City Council will first ascertain the view site and commented that the site proposed at the field trip is the north patio adjacent to residence at 1 Wagon Lane. Councilmember Heinsheimer moved that the north patio adjacent to the residence at 1 Wagon Lane be established as the view site. Councilmember Pernell seconded the motion which carried by the following roll call vote: AYES: Councilmembers Heinsheimer, Hill, Lay, Pernell and Mayor Black. NOES None. ABSENT: None. ABSTAIN: None. Mayor Black then stated that the next issue before the City Council is the determination as to whether or not a view exists and whether or not that view is significantly impacted according to the Municipal Code. Minutes City Council Meeting 08/27/12 -4- Councilmember Heinsheimer moved that it be determined that there is a significant view impairment. Councilmember Lay seconded the motion which carried by the following roll call vote: AYES: Councilmembers Heinsheimer, Hill, Lay, Pernell and Mayor Black. NOES None. ABSENT: None. ABSTAIN: None. Mayor Black then stated that the City Council will next determine through a de novo process what remediation may be necessary. Councilmember Pernell requested clarification from the City Attorney pertaining to the assertions presented during public testimony that the environmental review was insufficient and requires an Environmental Impact Report (EIR). City Attorney Jenkins responded that whether or not an EIR is required is dependent upon whether there is evidence of a significant adverse impact and is not based on conclusory allegations or mere argument. It is ultimately the City Council's responsibility to determine if CEQA has been adequately complied with and that determination is made by either adopting the Mitigated Negative Declaration or not adopting it. Councilmember Pernell asked for further clarification as to the assertion questioning the sufficiency of the arborists report. City Attorney Jenkins responded that based on the evidence presented, the City Council has to determine whether or not there is sufficient information to fashion a suitable remedy and if there is not sufficient information an expert may be consulted to provide information to assisting in arriving at a remedy. Councilmember Heinsheimer asked for clarification as to the process for crafting a resolution. City Attorney Jenkins responded that upon direction from the City Council, staff will draft a Resolution for consideration by the City Council. Councilmember Heinsheimer asked if it would be acceptable to provide guidelines as to what the City Council is looking to do in restoring the view based on the mural in Mrs. Greenberg's sitting room and give her the task of doing that work to the City Council's satisfaction. City Attorney Jenkins responded that the City Council's decision needs to be final, understandable and enforceable — it can't be a decision that simply sets up an on-going process without clear and concrete guidelines. Councilmember Lay reviewed a process where by another view complaint was resolved by the .parties going tree by tree to gain agreement between the parties on the specific actions on each tree and if the parties could not agree, a third -party, a certified arborist made the determination and asked if that could be done in this case. City Attorney Jenkins responded that the type of process Councilmember Lay referred to can't be ordered in this situation. Councilmember Lay further commented that he feels the City Council needs to determine what view may be achievable with regard to the bay view and should consider a way to ensure that the work that is done to improve the view' is done in a manner that is optimized and esthetically pleasing. Councilmember Heinsheimer suggested that the parties be given time to consider the City Council's comments and attempt to achieve a mutually satisfactory resolution to present to the City Council. In response to Councilmember Hills's inquiry as to how long the process may be, delayed, City Attorney Jenkins responded that the City Council should proceed in good faith. Councilmember Lay commented that he would like to see the process move forward and suggested that the City Council consider calling for the restorative action as specified in the Committee's Resolution for the trees to the north and east of the Wagon Lane driveway. He further commented that he feels the Council needs to further consider what view of the bay is realistically achievable. Mayor Black commented that he questions two items in the Committee's Resolution as not being consistent with previous actions the first being the assignment of cost for the maintenance and the second being a maximum width requirement being specified. Councilmember Heinsheimer further suggested that the requirement for replacement trees be eliminated. Councilmember Pernell commented that it is the City Council's responsibility to proceed under the current guidelines. Further discussion ensued concerning potential action. Councilmember Lay further commented that it is not clear to him that the angle that was shown in the aerial photograph from the view site that was distributed at the field trip is the appropriate angle to achieve a bay view and he feels that more work Minutes City Council Meeting 08/27/12 -5- needs to be done to determine the appropriate angle. He also suggested that in addition to requiring that qualified arborist be hired to complete that work; that an independent arborist not employed by the company doing the work be designated to oversee the trimming. Councilmember Lay suggested several actions be considered based on the Committee's Resolution for a view to the City and Mountains. With regard to the front of the property, he suggested that the line on aerial photograph that was distributed at the field trip which currently encompasses Marina Del Ray and the Queen's Necklace be moved from approximately a 22 degree angle to a 26-30 degree angle so as to minimize the number of trees affected and still provide an adequate view. Mayor Pro Tem Hill moved the City Council continue its consideration of this item and not make a hasty decision. Councilmember Lay responded that he feels that there is enough information to proceed with a recommendation on the backside of the Greenberg property. The motion died for lack of a second. Following further discussion, Councilmember Lay moved that the City Council, when moving forward to request a resolution, incorporate the View Committee's findings with relation to the northeast view corridor (east of the Wagon Lane driveway); that the northwestern view corridor (on Portuguese Bend Road side of the Greenberg property) be investigated further by staff in consultation with any professionals necessary to determine the amount of remediation necessary to achieve a bay view; and that remediation necessary on the four trees at the front of the house will be determined later. Councilmember Heinsheimer seconded the motion which carried by the following roll call vote: AYES: Councilmembers Heinsheimer, Hill, Lay, Pernell and Mayor Black. NOES None. ABSENT: None. ABSTAIN: None. The Public Hearing on this matter was continued to the September 24, 2012 meeting of the City Council. CONSIDERATION OF RESOLUTION NO. 1125: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROLLING HILLS, CALIFORNIA, FINDING THE CITY TO BE IN CONFORMANCE WITH THE CONGESTION MANAGEMENT PROGRAM (CMP) AND ADOPTING THE CMP LOCAL DEVELOPMENT REPORT, IN ACCORDANCE WITH CALIFORNIA GOVERNMENT CODE SECTION 65089. Mayor Black introduced the item, opened the public hearing and called for public testimony. Hearing none, he closed the public hearing. Councilmember Heinsheimer moved that the City Council adopt Resolution No. 1125 finding the City to be in conformance with the CMP and adopting the CMP Local Development Report. Councilmember Pernell seconded the motion which carried without objection. OLD BUSINESS None NEW BUSINESS CONSIDERATION OF A RECOMMENDATION FOR AWARD OF A BID TO J&S STRIPING FOR FY 2012-13 CITY OF ROLLING HILLS STREET STRIPING AND PAVEMENT MARKINGS PROJECT ON SELECTED STREETS. Mayor Black introduced the item and City Manager Dahlerbruch stated that staff recommends the bid for street striping be awarded to J&S Striping. Councilmember Heinsheimer moved that the City Council award the bid for the FY 2012-2013 City of Rolling Hills street striping and pavement markings project on selected streets to J&S Striping and authorize the City Manager to execute the contract. Councilmember Lay seconded the motion which carried without objection. OPEN AGENDA - APPROXIMATELY 8:00 P.M. - PUBLIC COMMENT WELCOME None. Minutes City Council Meeting _ 08/27/12 -6- '— MATTERS FROM THE CITY COUNCIL AND MEETING ATTENDANCE REPORTS None. MATTERS FROM STAFF QUARTERLY SCHEDULE OF INVESTMENTS REPORT FOR THE QUARTER ENDING JUNE 30, 2012. City Manager Dahlerbruch stated that the quarterly schedule of investments for the quarter ending June 30, 2012 has been provided for the City Council's information. The report was received and filed. City Manager Dahlerbruch stated that an e-mail from Gordana Swanson regarding the newly installed stop sign on Chesterfield Road has been placed on the dais at Mrs. Swanson's request for the City Council's information and that the matter is being referred further to the Traffic Commission for consideration. MATTERS FROM THE CITY ATTORNEY CLOSED SESSION The City Council finds, based on advice from legal counsel, that discussion in open session will prejudice the position of the local agency in the litigation. G.C. 54956.9(a) Howard H. Hall, an individual, as Trustee of the Howard H. Hall Living Trust v. City of Rolling Hills, Oksana R. Bihun, Los Angeles County Superior Court Case No. BS136694. G.C. 54956.9(a) Howard H. Hall, an individual, as Trustee of the Howard H. Hall Living Trust v. Oksana R. Bihun, City of Rolling Hills, et al., Los Angeles County Superior Court Case No. BC482607. G.C: 54956.9(a) Richard C. Colyear, an individual, v. Anton Dahlerbruch, City Manager/City Clerk, City of Rolling Hills, et al., Los Angeles County Superior Court Case No. BS 13 83 63. The City Council recessed into closed session at 11:05 p.m. to discuss two cases listed on the closed session agenda — Colyear v. City of Rolling Hills and Hall v. Rolling Hills. The Council was provided with a status report on the two cases; no reportable action was taken. Hearing no further business before the City Council, Mayor Black adjourned the meeting at 11:30 p.m. The next regular meeting of the City Council is scheduled to be held on Monday, September 10, 2012 beginning at 7:30 p.m. in the City Council Chambers at City Hall, 2 Portuguese Bend Road, Rolling Hills, California. Approved, James la , M.D. Mayo Minutes City Council Meeting 08/27/12 Respectfully submitted, �Wb Heidi Luce Deputy City Clerk -7-