Council Shelves View 'Restoration' in Favor of 'Preservation'

•  Controversy Has Dogged Proposal Throughout Process that Included 31 Public Meetings

BY BILL KOENEKER

Despite 31 public meetings regarding a citywide view restoration ordinance including six council sessions, the Malibu City Council this week was unable to make a decision about enacting a restoration ordinance and instead voted for a view preservation law.

Having it both ways during election season, the council agreed to revisit the restoration element of the ordinance in six months.

"They gutted the ordinance," said critic John Mazza, who is a planning commissioner and was a member of the View Protection Task Force, after the meeting  "There is not going to be a restoration ordinance."

In what had become a highly divisive issue among the public and even among council members seemed to be moving closer to adoption by the city council at its previous meeting after a series of motions narrowed down the shape of the proposed ordinance.

At the conclusion of the previous meeting, council directed staff to complete a draft citywide view restoration ordinance "which includes the city making a determination in view disputes and to protect views as they existed on the date of acquisition of property or date of cityhood, whichever is more recent," according to the planning staff.

But that all changed this week after hours of council deliberations and debate, when Councilmember John Sibert, who is running for reelection, urged his colleagues to put aside the restoration aspect of the ordinance.

Sibert said, "The issue to Lou [La Monte] and others is retroactivity. Somewhere in between is the truth. I'd like to find out where that is and also we have a fiduciary responsibility. Malibu is not Rancho Palos Verdes or Beverly Hills. Whatever you put out there, some will game it. I would like us to establish a window for people to claim their view. We don't know how many claims [there might be]," he said.

The council talked about how many cases might be generated, the costs, whether to require an aerial survey, not wanting to keep the 18-foot height exemption. The reason for the law is that neighbors can't get along with each other, whether to include commercial buildings, and a definition of a primary view.

After the dust settled, Sibert said. "We can split the ordinance in half, then [later] write the ordinance."

"This is no restoration ordinance. It is not something I like," said the mayor. "But how do we handle restoration. There is nothing in there on it."

City Attorney Christi Hogin then summarized the motion that was on the floor, "We are replacing the pre-existing view, defining primary view that existed on or after Feb. 13, 2012. Direct staff to come back in six months and allow claimants to some kind of view assessment," she said. That became the motion that passed 3-2 with the mayor and Councilmember Jefferson Wagner dissenting.

"This is going to take a lot of staff time. We are asking them to pay for something that might never happen. Is that legal?" Rosenthal said.                                  

The fee was estimated at $6940, which includes planning department time, consultants such as arborists and biologists and public noticing. It would not include permit decisions that are appealed or code enforcement staff time.

Appeal fees will be calculated separately and presented in a fee schedule for the city council, according to planners. To start claimants will be charged $300.

At the previous meeting, the council could not initially agree on whether to make the ordinance protect a view that existed on the date of ordinance adoption, date of incorporation or the date of a property acquisition, but no earlier than March 28, 1991.

After hours of deliberations, the council at the last meeting voted 3-2 with Conley Ulich and Councilmember Lou La Monte dissenting, to allow retroactivity to the date of incorporation or point of purchase.

Sibert was the swing vote and had asked if the council was going to have another vote on the proposed ordinance and was told yes.

 Sibert said he wanted a trial run, have folks come in to show what kind of information or evidence they have to determine how many cases there might be and what kind of data people could provide before the council enacted any law. There were four more new claimants who contacted the staff in the last two weeks.

La Monte insisted he would not support a retroactive ordinance and said the view restoration proposal created a brand new right at the expense of the foliage owner.

Rosenthal said she supported the notion that folks had paid for their view when they bought their homes and the loss of those views because of foliage growth meant a loss of equity. "People have a right to a view. They paid for a view when they bought their houses. In three or four years there is nothing," she said.

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, while others raised questions about the legal implications and potential impacts from the law of unintended circumstance.