View protection ordinance to go before planning

View Protection Task Force members and residents express impatience with the slow pace of approval.

By Michael Aushenker / Special to The Malibu Times

The city’s zoning subcommittee last week approved moving forward recommendations for the proposed Malibu view protection ordinance to the city’s Planning Commission.

Meanwhile, stakeholders in the ordinance expressed impatience with the snail-like pace of the approval process of the law that would enforce rules on maintaining private properties to preserve views.

“Let’s cut to the chase … How many more years do we have to futz around with this thing?” View Protection Task Force member Leon Cooper said during the public comment forum on the Zoning Ordinance Revisions and Code Enforcement Subcommittee, or ZORACES, last week.

The crux of the meeting was the protocol for addressing view blockage and the disputes that the proposed view protection ordinance might engender. The nine-member View Protection Task Force that created the ordinance was eager to approve and implement it. However, the ordinance must first be approved by the Planning Commission, and then by the City Council. ZORACES members last week voted to forward the task force’s and city staff’s recommendations on the draft ordinance to the Planning Commission.

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Task force members and residents expressed their impatience with the long process of final approval.

“This was approved in April of ‘08!” task force member Sam Hall Kaplan exclaimed. “Here we are another year-plus after. Trees are growing and the frustrations of a number of residents have been growing.”

“It’s time the ordinance gets enacted,” homeowner Mike Sidley added during public comment. “We don’t need to reinvent the wheel.”

In April 2008, Measure E was passed, which asked voters if the city should create an ordinance that would require the maintenance or removal of landscaping to protect primary views. The measure passed with 63 percent approval. The citizen task force, aided by Rancho Palos Verdes City Mediator Coleen Berg, spent nine months studying the issue and drafting an ordinance to address view primacy and protocol. In June 2009, the task force approved the Malibu View Restoration and Preservation Ordinance, which, along with a minority report prepared by two members of the task force, were presented to the council. However, it was found inconsistent with current city code.

The city asked staff to do further studies on other cities’ view protection ordinances.

The view ordinances of affluent California beach communities Rancho Palos Verdes, Laguna Beach and Tiburon were studied.

Tiburon’s ordinance allows residents to sue each other over view blockage, which could end up being costly with wealthier residents most likely prevailing in the courts. With the Rancho Palos Verdes’ ordinance there is a mediation process. If that doesn’t work, the dispute goes on to arbitration with the ruling enforced by the city, and, should that fail, it continues to the courts.

Berg told The Malibu Times that work on Malibu’s ordinance was thorough: “There were a lot more issues than they thought going into it, but [Rancho Palos Verdes’ ordinance] is definitely structured for their needs.”

Some ZORACES members at the meeting suggested a Tiburon/Rancho Palos Verdes hybrid. Mayor Jefferson Wagner, who is a ZORACES member, explained that City Attorney Christi Hogin does not want the city to get involved.

However, the hybrid proposal did not sit well with task force members.

“The city attorney is worried that it may give rise to liability,” resident Rodney Pearlman said. “But anything the city does may give rise to liability. Lawyers, by nature, are risk averse. But that’s not the role of government.”

Using statistics from Rancho Palos Verdes, Barry Tyerman discredited the city attorney’s position via counter-analysis, showing how few of that city’s disputes reached the courts due its thorough, multitiered system.

“I favor something that doesn’t allow the person with the deepest pockets to spend the most on attorneys to customarily win,” Mayor Pro Tem and ZORACES member John Sibert said.

Task force members agreed. Pearlman, who relied on 35 years of experience as a litigator to help draft the ordinance, poured over the Rancho Palos Verdes ordinance.

“If you don’t mediate,” Pearlman said, “the option of going to court will cost $100,000 for those who can afford it and that’s the definition of unequal justice.

“It has to be affordable,” he continued. “We developed in our draft a procedure ultimately to resolve a suit if it couldn’t be resolved between the property owners. It’s a city initiative and the responsibility lies at this table.”

Sibert agreed, but added, “There are disputes that I know about personally where mediation is not going to work.”

“In the ordinance, people are required to contact each other and talk to each other before mediation,” responded Pearlman, suggesting that such communication often diffuses conflicts early.

On Tuesday, Mayor Wagner said, “We’re headed toward a Ranchos Palos Verdes type ordinance that has been proven through the courts,” but “it would also mimic some of the other [cities’ ordinances].”

Poor attendance by residents at previous meetings (averaging 12 people) on the view protection ordinance was also discussed, with Sibert seconding subcommittee member John Mazza’s suggestion to hold two “well-advertised public workshops to bring more people in.”

Dates for the two public workshops on the ordinance are to be determined.

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The Malibu Times is the first newspaper in Malibu, serving the community since 1946.

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