Controversial View Restoration Proposal Is Back Before Council

• Differences of Opinion Appear to Be Difficult to Bridge

BY BILL KOENEKER

What has become a highly divisive issue among the public and even council members is set to go again before the Malibu City Council at its regular meeting next week.

The city has held 30 public meetings regarding a citywide view restoration ordinance, including 19 View Protection Task Force meetings and several sessions conducted by both the planning commission and the city council.

The council two months ago agreed on a half-dozen revisions to the draft ordinance.

Nevertheless, the council has failed to reach consensus on several key items.

Consequently, the planning staff is seeking direction on what they call two outstanding items.

"Should the city be involved in making a determination in view disputes and enforcing that determination? [And] Should the view ordinance retroactively restore views or be effective day forward?"

The council could not agree on whether to make the ordinance protect a view that existed on the date of ordinance adoption, date of incorporation (March 28, 1991),or the date of a property acquisition.

Planners, who have not made a recommendation, have subsequently drafted two versions of the proposed ordinance.

"The majority of the two ordinances are identical with the exception of the Malibu Municipal Code (Restoration Procedure). Draft Ordinance No. 1 offers a non-binding city advisory opinion as a step in the restoration procedure and Draft Ordinance No. 2 offers a city determinant, made by the planning commission as a step in the restorative procedure," the staff report states.

Planners also want the council to provide general comments on the draft ordinances such as the maximum allowable foliage height, indemnification language and whether a city determination should run with the land.

Planners indicate that most of the content of the two drafts remain the same as the previous draft that was considered by the council in September.

The most substantial change is the addition of an allowable foliage height permitted by right, according to the staff report.

Some cities, the staff found, have included a provision to allow certain foliage up to a certain height by right including Beverly Hills and Rancho Palos Verdes.

Beverly Hills establishes a protected line of sight plane or safe harbor plane. Rancho Palos Verdes allows foliage that is 16 feet in height or the ridgeline of the primary structure, whichever is lower, to be exempt from the restorative actions. Staff is recommending the city exempt foliage lower than a certain height similar to RPV.

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 commission in June was able to tether together a proposed citywide view restoration ordinance using various parts from other cities, staff and commission recommendations.

A majority of the planning panel turned down a proposed ordinance that would have been more closely modeled after a Rancho Palos Verdes version.

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 on June, 2008 to create the View Protection Task Force to gather public input on what should be included in the citywide ordinance.

During the subsequent public hearings and workshops there have been some speakers who urged the commission and the city council 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 panel's recommended ordinance would better serve the city.

Some former task force members said they will make one last effort to convince the council the panel's proposed ordinance is the best fit for Malibu.