City Council Stalls on Proposed View Restoration Ordinance

• Potential Measure's Basic Premise and Elements Are Sent Back to Staff for a Major Overhaul

BY BILL KOENEKER

The Malibu City Council this week got bogged down in the details of what elements should be in a proposed view restoration ordinance and turned the matter back to the staff.

There were a number of items that the council found consensus on, but as Mayor John Sibert said, "We haven't got to the difficult ones, yet."

A majority of council members agreed that there should not be any free mediation as recommended by the planning commission and staff.

A majority also agreed that the height limit should be related to the residence rather then the trees themselves.

There was also a consensus that the claim or counter claim should be subject to the appeal of the planning commission and also agreed that the planning panel should be the preservation committee rather than a separate body.

There were almost two dozen speakers, who expressed conflicting views on the agenda item with council members indicating they distilled various opinions from all of the speakers.

During council comment, Councilmember Pamela Conley Ulich talked about how she thought of the voters' advisory measure as a unfunded mandate. "It is a mistake, just like the state's unfunded mandates," she said. "We could do a better job at the costs of millions of dollars just to give it to the 17 people who show up. We have many other priorities. If we are going to pass this, I don't want it to cost the city."

Commenting further about the voter, Conley Ulich said those who campaigned for city council talked about supporting the measure, but did not win the election. She noted that Councilmember Lou La Monte, who was a minority member on the defunct View Restoration Task Force, was the one elected to office.

Conley Ulich said she wanted to know if there was a consensus about the city not subsidizing mediation.

However, Councilmember Jefferson Wagner said the city should not remove itself from the process and should support the measure financially. "The city has to participate," he added.

La Monte countered. "We should not be paying for free mediation," he said. "This is not revenue neutral."

Councilmember Laura Rosenthal said there were more than 17 folks who were interested or impacted by the issue. "It affects me. It affects the view of my property. The city should be involved, but stay revenue neutral. Why are they mutually exclusive?" she asked.

Mayor John Sibert, commenting upon the growing conflict between council members, said, "We do have a diversity of opinion. One of the issues I have with it, the free mediation. It doesn't gain you much. We are putting out a carrot but where is the stick? It is privacy versus view. I'm inclined to say we don't pay for mediation."

Rosenthal wanted to know why there had not been a tree ordinance included in the proposed new law. "Why did it not come from the task force?" she asked.

La Monte said that allowable tree height was rejected by a majority of the task force. "It was a key part not even included. Allowable tree heights would eliminate the problem," he added.

City Attorney Christi Hogin said there is a landscaping plan required of new homebuilders. The vegetation must be limited to six feet, according to the code.

Council members also talked about native trees and how they are exempted and cannot be cut down.

Planning Director Joyce Parker Bozylinski said the challenge is in enforcing such a limit and how a tree first planted would years later impact or block views. "It is difficult to know," she said.

The council, upon La Monte's urging, began to talk about whether there should be a separate committee or the matter could be handled by the planning commission. There was quick agreement that the planning panel was best suited to handle the chore.

The council talked about financial hardship exemptions, the value of trees, and the measure of privacy, however, when members began to discuss if the proposed ordinance should be retroactive, there was dissension.

La Monte said it should be enacted like any other law, becoming effective on the day it is enacted. "If you start the ordinance today, there will be no legal fees. It should not be retroactive. The day this becomes law, you will need more phones in City Hall," he said.

"I completely disagree," said Rosenthal.

"It was supposed to go back," said Wagner. "We are trying to cherry pick from three and half years of work in three or four hours. I find it disappointing we are debating this," he said.

Whereupon, the mayor interjected, "I don't think we are going to pass an ordinance tonight. We can have the debate tonight. It will come back to us but the public comment is closed.

However, Hogin said, "We will want to open it up for public comment."

"That is too bad we have to do that. When do we want this to come back?" the mayor asked. Hogin asked if it should go back to committee. Everyone said "No."

The citywide view restoration ordinance is described by municipal planners as a proposal  "establishing a private right of action for property owners to restore pre-existing views that have been significantly obstructed by landscaping on neighboring properties."

The majority of the planning panel in June was able to put together a proposed citywide view restoration ordinance using various parts from other cities, staff and commission recommendations.

A majority of the planning commission turned down a proposed ordinance that would have been more closely modeled after a Rancho Palos Verdes version. Hogin called that measure a court-tested law.

The impetus for the proposed ordinance came from the voters on April 8, 2008, when an advisory measure asked the citizens, "Should the Malibu City Council adopt an ordinance that would require the removal or trimming of landscaping in order to restore and maintain primary views from private homes?" The measure was approved by 60 percent of the voters.

The then city council decided in June 2008 to create the View Protection Task Force to gather public input on what should be included in the citywide ordinance.

The now defunct task force met for almost a year and ultimately approved a proposed draft ordinance, which was forwarded to the planning commission. During the public hearings and workshops there were some speakers who urged the commission to adopt the proposed ordinance, which was crafted by the municipal task force charged by the city council to vet the issue.

Speakers, who were on the task force, suggested that the task force's recommended ordinance would better serve the city. The same was true Monday night, when many of the former task force members showed up to urge the council to adopt their work product.

The now defunct task force met for almost a year and ultimately approved a proposed draft ordinance, while two members of the task force prepared a minority report. One of those panelists was La Monte, now a council member. The other was part-time Malibu resident                                             Suzanne Zimmer, who helped La Monte craft a minority report that differed sharply from the majority's recommended ordinance.

Zimmer was also at Monday night's meeting and told council members there were many provisions in the staff-recommended version she found objectionable.

Former task force chair Sam Hall Kaplan, and former task force members Barry Tyreman, Harold Greene, Leon Cooper, Marilynn Santman, and Lucille Keller all joined forces this week to urge the council to adopt their proposed ordinance.

Speaking about the ordinance that was proposed by the staff, Hall Kaplan said, "The proposed ordinance is flawed. It is not resident friendly and does not fulfill the measure approved by the voters. The task force ordinance is reasonable…and will best serve the city."

Greene said there are inconsistencies in the language of the proposed ordinance stating in one section the claim would run with the land and in another place that it was not a covenant and would not run with the land.

Tyreman said the staff-recommended ordinance does not follow the court tested models and would invite litigation.