View restoration ordinance nears final hurdle

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City’s offer to pay for mediation of disputes over blocked views could be costly.

By Knowles Adkisson / The Malibu Times

The Malibu Planning Commission was scheduled to decide Tuesday this week whether to adopt the controversial citywide View Restoration and Preservation Ordinance for consideration by the City Council. The ordinance would establish a formal procedure for property owners to have foliage removed or trees trimmed on neighboring properties that have grown to obscure pre-existing views.

The decision will be published online at www.malibutimes.com later this week.

The view restoration ordinance effort stems from a vote in the spring of 2008, in which voters directed the city to create an ordinance to protect views, as vegetative growth and new construction were becoming a source of conflict between neighbors. A citizen task force formed to gather public input on the process made recommendations for an ordinance in late 2009, and the Planning Commission held workshops in September and November of 2010 to gather final feedback from property owners on the draft of the ordinance.

While the city has made great effort to not be the mediator or enforcer of any view restoration disputes, it will subsidize mediation for up to three hours to encourage neighbors to settle. However, it could become costly for the city, as a city staff report identified 4,030 households as possible candidates for view restoration, each of which would qualify for the subsidized mediation. Informal staff estimates put the cost of each three-hour mediation session at between $300 and $450. In the unlikely scenario that all 4,030 households took the city’s offer for mediation, the cost to the city would be between $1.2 and $1.8 million.

Moreover, the staff report on the ordinance does not specify whether commercial properties qualify for the mediation subsidy, or how many commercial properties would likely apply for it.

An option cited in the staff report for defraying that cost would be to enlist students from Pepperdine University’s Straus Institute for Dispute Resolution, which has been ranked the number one dispute resolution program by U.S. News and World Report for six consecutive years. Staff has met with several directors of the Straus Institute to discuss the subject.

The ordinance allows residential and commercial property owners to reclaim one 180-degree “primary view” that has been obstructed by foliage growth within a 1,000-foot radius of their property. To qualify under the ordinance, the view must have been unobstructed when the property was purchased or at the time of the city’s incorporation, whichever is later. The staff report defines a “primary view” as “visually impressive scenes of the Pacific Ocean, offshore islands, the Santa Monica Mountains, canyons, valleys, or ravines.”

Under the ordinance, disputes would be settled through the courts if mediation fails.

A property owner claiming a view obstruction must first consult with the owner of the obstructing foliage or trees informally to try to reach an agreement. If those discussions are unsuccessful, the city would pay for a mediator for up to three hours to help the two sides reach an agreement; a neutral third party who would act as a negotiator. Mediation agreements are not legally binding, and would have to be agreed to by both parties.

The two sides can also enter into binding arbitration. The arbitrator, usually a retired or active judge, or an attorney, would question both sides and make a decision. That decision would be legally binding, with the parties involved forfeiting their rights to appeal the decision in court.

If all those options fail, the claimant would have to file a civil lawsuit to find resolution.

As part of the ordinance, a View Restoration Committee comprised of citizens would be formed that could issue an official opinion on view restoration disputes. Those opinions could be used as evidence in civil lawsuits. The city would not enforce any view restoration decision, and the owners of foliage found to obstruct views would be responsible for making sure it did not grow back again.

The ordinance can not come fast enough for some. Resident Ron Krisol complained about the slow pace of the process at a Planning Commission meeting in November.

“The city voted for an ordinance [in 2008]. I’m waiting,” he said. “I lost my view. Nothing’s happened and I’ve lost my view.”

Others worry about an invasion of privacy, and fear the cost of keeping their foliage trimmed.

Resident Judy Decker said she was a senior citizen on a fixed income, and if she had to pay for the maintenance of the restored view on her property, she could lose her home.