Note: Prior ordinance history: Ord. 361.
This chapter shall be known as "Citywide View Preservation and
Restoration."
(Ord. 378 § 3, 2014)
A.
The
purpose of this chapter is to establish a right for property owners
to preserve a primary view that existed on or after February 13, 2012
and to restore a pre-existing view, as defined in this chapter, which
has been significantly obstructed by foliage, while striking an equitable
balance between the right to reasonable use of one's property including
the maintenance of privacy and the right to protection against unreasonable
loss of views. This chapter applies to all properties within the city's
permitting jurisdiction, excluding state and county-owned properties.
B.
This
chapter is not intended to encourage or result in the clear-cutting
or substantial denuding of any property of its trees by overzealous
application of provisions of this chapter. It is also not the intent
or purpose of this chapter for the city to supplant any private covenants,
conditions, and restrictions (CC&Rs) which may place more restrictive
controls on the growth or placement of foliage.
(Ord. 378 § 3, 2014)
The following definitions shall apply for purposes of this chapter:
means a voluntary legal procedure for settling disputes and
leading to a determination of rights of parties, usually consisting
of a hearing before an arbitrator where all relevant evidence may
be freely admitted.
means a mutually agreed upon neutral third party professional
intermediary who conducts a hearing process, and who hears testimony,
considers evidence and makes decisions for the disputing parties.
means an individual certified as an arborist by the International
Society of Arboriculture (ISA).
means a property owner who alleges that foliage is causing
a significant obstruction of a primary view.
means a local emergency proclaimed by the city manager that
broadly affects view determinations.
means the area within a 1,000-foot radius of a property that
was damaged or destroyed by a disaster, as determined by the planning
director.
as defined as set forth in the certified Malibu LCP Local
Implementation Plan.
means a woody plant with the potential to obstruct primary
views. "Foliage" includes, without limitation, trees, shrubs, hedges
and bushes.
means a person owning property containing foliage that a
claimant alleges is causing a significant obstruction of a protected
view.
means any plant material, trees, stump growth, or shrubbery
planted or grown in a dense continuous line, so as to form a thicket,
barrier or the substantial equivalent of a living fence.
means the ground floor of a commercial, institutional or
principal residential structure unless the ground floor of a commercial
structure consists of garages, parking areas and storage and unless
the primary living area of a principal residential structure is not
located on the ground floor. If the ground floor of a commercial structure
consists of garages, parking areas and storage, the "main viewing
area" means the first habitable floor. If the primary living area
of a principal residence is not located on the ground floor, the main
viewing area means the primary living area of the principal residence.
The "main viewing area" may be an abutting outdoor deck or patio area
located at relatively the same elevation as the ground floor of a
commercial or institutional structure or a primary living area of
a residence, whichever has the superior view corridor. Bedrooms, master
bedroom retreats, offices, hallways, closets, laundry rooms, mechanical
rooms, bathrooms and garages shall not be considered main viewing
areas. Application of a primary view corridor requires an established
"main viewing area."
means a process of using a neutral third person to facilitate
a mutually satisfactory solution to a view dispute.
means a neutral third person that assists the claimant and
foliage owner in finding a mutually satisfactory solution to a view
dispute.
means a primary view within the structure's assessed primary
view corridor that existed on the date of acquisition of the property
or city incorporation, whichever is more recent. If the property was
acquired without a developed, legally-habitable structure, a pre-existing
view shall mean a primary view that existed as of issuance of a certificate
of occupancy or city incorporation, whichever is more recent. The
pre-existing view cannot be a result of a natural disaster or a result
of illegal activities.
means the living room, family room, dining room, kitchen
or a combination thereof.
means visually impressive scenes of the Pacific Ocean, offshore
islands, the Santa Monica Mountains, canyons, valleys, or ravines,
within a primary view corridor.
means a 180 degree view assessed by the planning director
or designee from a single fixed location and direction within the
main viewing area, at an elevation of five feet as measured from the
room floor or on an abutting outdoor deck or patio at any one point
within 10 feet of the nearest outside wall of the structure as selected
by the affected property owner and the city.
means a process by which the planning director or designee
documents the location of a claimant's primary view corridor.
mean the primary residential structure located on a lot.
Guest houses, granny flats and second units are not principal residences
or principal residential structures.
as defined in Section 5.2 of the Malibu Local Coastal Program
Local Implementation Plan.
means the destruction or displacement of foliage by cutting
or other mechanical method that result in physical transportation
of the foliage from its site and/or death of the foliage.
means any proposed landscaping sited in the same location
and of the same relative size at maturity as previously existing legal
landscaping that was damaged or destroyed by a disaster.
means any proposed structure sited in the same location and
of the same relative size as a previously existing legal structure
that was damaged or destroyed by a disaster.
means measures undertaken to eliminate a significant obstruction
of a primary view.
means new growth from the remaining portion of a tree trunk,
the main portion of which has been cut off.
means a permit issued by the city, requiring restorative
actions on foliage located on a foliage owner's property in order
to preserve a claimant's primary view.
(Ord. 378 § 3, 2014; Ord. 450 § 4, 2019)
The following criteria shall be considered in determining whether
a significant obstruction has occurred in view preservation and view
restoration disputes:
A.
The
extent the foliage obstructs a pre-existing view and/or primary view,
both currently and at foliage maturity.
B.
The
location of the obstruction within a view frame; foliage located within
the center of a primary view is more likely to be found to create
significant obstruction than obstruction located on the outer edge
of a primary view.
C.
The
quality of the primary view being obstructed, including obstruction
of landmarks, vistas or other unique features.
D.
The
extent to which the primary view has been diminished over time by
factors other than tree growth, such as new additions or residences.
E.
The
extent to which the primary view contributes to the economic value
and/or enjoyment of the claimant's property.
(Ord. 378 § 3, 2014)
Subject to the limitations in Section 17.45.020, and consistent with the process and procedures set forth in this chapter, property owners shall have the right to preserve a primary view corridor documented by staff on or after February 13, 2012 that has been significantly obstructed by foliage located within 1,000 feet of the point of the main viewing area from which the claimant's primary view corridor has been assessed.
Property owners wishing to preserve views protected by this
chapter shall pay the associated fee and request a primary view determination.
Upon receipt of a primary view determination request, staff will confirm
whether a primary view corridor has been established previously in
connection with a prior development project. If a previous primary
view corridor has been established, planning department staff will
document the current view within the same primary view corridor. In
the event planning staff and the owner cannot agree on the main viewing
area, the owner may appeal the decision to the planning commission.
Once a primary view corridor has been established, whether in connection
with a previous development project or a view preservation permit,
it cannot be changed for future applications or owners.
Upon receipt of a complete view preservation permit application, staff will return to the claimant's residence and document the current view within the same primary view corridor. Property owners wishing to preserve views protected by this chapter must proceed in accordance with the procedure set forth in Section 17.45.060(A) through (D).
(Ord. 378 § 3, 2014)
Claimants may initiate the preservation procedure as outlined
below.
A.
Informal
Discussion. The claimant and foliage owner shall attempt to reach
a mutually satisfactory solution to the view dispute by having personal
discussions. The personal discussions shall be accompanied by a written
notification sent by the claimant to the foliage owner, informing
the foliage owner of such concerns by registered or certified letter
with return receipt requested. The foliage owner's mailing address
shall be obtained from ownership records on file with the Los Angeles
County assessor's office.
B.
Mediation.
If informal discussion is unsuccessful, the claimant shall invite,
by registered or certified letter with return receipt, the foliage
owner to participate in mediation. The foliage owner shall have no
more than 60 calendar days from service of a written request for mediation,
as indicated on the return receipt, to accept or reject the offer
of mediation. Failure to respond in writing with return receipt within
60 calendar days shall be deemed as a refusal of mediation. Acceptance
of mediation shall be voluntary. If mediation is accepted, the parties
shall mutually agree upon a mediator and conduct mediation within
60 calendar days. The mediation meeting may be informal or formal.
The mediator shall be guided by the provisions of this chapter. The
mediator shall not have the power to issue binding orders for restorative
actions, but shall strive to enable parties to resolve their dispute
by written agreement in order to eliminate the need for arbitration
or submission of a view restoration claim.
C.
Binding
Arbitration. If informal discussion is unsuccessful and if mediation
has been declined or also unsuccessful, the claimant shall propose
binding arbitration. The claimant shall notify the foliage owner of
such proposal in writing, sent by registered or certified letter with
return receipt requested. Acceptance of arbitration shall be voluntary,
but the foliage owner shall have no more than 60 calendar days from
service of a written request for arbitration to accept or reject the
offer of arbitration. Failure to respond in writing with return receipt
within 60 calendar days shall be deemed as a refusal of arbitration.
If arbitration is accepted, the parties shall mutually agree upon
an arbitrator and conduct arbitration within 60 calendar days of acceptance.
The arbitrator shall be guided by the provisions of this chapter in
resolving the view dispute. The arbitrator shall provide a written
decision to the parties and the city which shall include the arbitrator's
findings, a pertinent list of all mandated restorative actions with
any appropriate conditions concerning such actions, and a schedule
by which the mandates must be completed. The arbitrator's decision
shall be binding and enforceable pursuant to the provisions of California
Code of Civil Procedure Section 1280 et seq.
D.
View Preservation Permit (Planning Director). If the provisions of subsections A, B and C of this section produce a satisfactory result to the claimant or foliage owner, either party may submit a view preservation permit to memorialize the agreement and seek city enforcement of a decision by submitting the following documents:
1.
Authorization
from claimant and foliage owner to submit a view preservation permit;
and
2.
Decision
made in informal discussion, mediation or binding arbitration.
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Such permits shall be approved at the discretion of the planning
director if the planning director finds that mediation or binding
arbitration decisions are in compliance with this chapter and shall
not be appealable to the planning commission or city council. Such
approval does not require a public hearing.
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E.
View Preservation Permit (Planning Commission). If the provisions of subsections A, B and C of this section are exhausted and do not produce a satisfactory result to the claimant, the claimant may submit a view preservation permit application to the city requesting preservation of a primary view corridor documented by staff on or after February 13, 2012.
1.
Application.
An application for a view preservation claim shall include each of
the following information:
a.
The name(s) of the foliage owner(s) and the address(es) of the property
where the foliage is located;
b.
Primary view determination photographs taken by staff demonstrating
photographic evidence of the primary view prior to obstruction. As
such may exist, photographs, prints, negatives, and/or slides must
be date-stamped. The claimant may provide supporting evidence such
as, but not limited to, arborist statement of foliage's age, property
descriptions prepared in connection of the sale of the property, such
as, but not limited to, multiple listing service (MLS) information,
newspaper advertisements, real estate flyers, etc.;
c.
Evidence confirming the ownership and the date of acquisition of
the claimant's property;
d.
Evidence of attempt at informal discussion;
e.
Evidence of attempt at mediation;
f.
Evidence of attempt at arbitration;
g.
Tree survey, at the discretion of the planning director. A description
of the nature and extent of the alleged obstruction, including the
location and height of all foliage alleged to cause the obstruction
on a tree survey. The tree survey shall be prepared in conjunction
with a land surveyor and signed or stamped by a registered landscape
architect or arborist. If a foliage owner does not grant access to
his or her property for the purpose of conducting a tree survey, the
tree survey shall be prepared with as much of the above information
as possible, using other information sources such as photographs taken
from other properties, satellite photographs, public record permit
information for work performed on foliage owner's property, and other
similar information sources. The survey must indicate the boundaries
of the 1,000 radius as measured from the point of the main viewing
area from which the claimant's primary view corridor has been assessed;
h.
Restorative actions proposed by the claimant to preserve the primary
view;
i.
Declaration of the claimant's willingness to bear the cost of the
restorative actions;
j.
Any supporting documents, such as arborist reports or any private
agreements reached in mediation or non-binding arbitration decisions,
etc.; and
k.
Associated fees, as set by resolution of the city council.
2.
Site
Visits.
a.
Upon receipt of a complete view preservation permit application,
planning department staff will conduct a site visit to the claimant's
property and document the alleged obstruction of the previously documented
primary view.
b.
Planning department staff shall make reasonable attempts to conduct
a site visit to the foliage owner's property, subject to the foliage
owner's authorization. If the foliage owner does not permit access
to the foliage owner's property, planning department staff shall review
the case using other information available, including, but not limited
to, information provided by the claimant.
3.
Public
Hearing and Notice. The view preservation permit shall be considered
by the planning commission at a noticed public hearing, unless said
permit is approved at the discretion of the planning director to memorialize
a decision made in mediation or binding arbitration. Not less than
10 days before the date of the public hearing, public notice shall
be given of such hearing in the following manner:
a.
A public notice shall be published in a newspaper of general circulation
within the city. Such notice shall state the nature of the request,
the claimant's property address, the addresses of all properties on
which the foliage at issue is located, and the time and place of the
scheduled hearing.
b.
A public notice shall be mailed to the claimant and the record owners
and occupants of all properties on which the foliage at issue in the
view preservation permit application is located.
4.
Findings.
The planning commission may issue a view preservation permit to require
removal or alteration and maintenance of foliage at the designated
maximum height, including trimming, thinning, or reducing the height
or width of foliage, on a foliage owner's property if it makes all
of the following findings:
a.
The claimant has provided evidence of attempt at informal discussion,
mediation, and binding arbitration to resolve view dispute;
b.
The claimant has a primary view that has been significantly obstructed by foliage that is not exempt pursuant to Section 17.45.130;
c.
Alteration or removal of the foliage will not have a substantial
adverse impact on a hillside, drainage or erosion control;
d.
If the recommended restorative actions include removal, that all
other restorative actions are ineffective in restoring the primary
view while preserving the health of the foliage; and
e.
The recommended restorative action is the minimum required to restore
the claimant's primary view, unless restorative action will result
in future stump growth in which case, more aggressive action is preferred.
5.
Conditions.
In approving a view preservation permit, the planning commission or
planning director may impose such restrictions or conditions, including
restorative action, as deemed necessary or proper to restore a primary
view; protect the foliage owner's privacy; protect the public health,
safety or welfare; or any combination thereof. Every view preservation
permit shall include the following condition:
The Claimant(s), and their successors in interest, shall indemnify
and defend the City of Malibu and its officers, employees and agents
from and against all liability and costs relating to the City's actions
concerning this project, including (without limitation) any award
of litigation expenses in favor of any person or entity who seeks
to challenge the validity of any of the City's actions or decisions
in connection with this project. The City shall have the sole right
to choose its counsel and property owners shall reimburse the City's
expenses incurred in its defense of any lawsuit challenging the City's
actions concerning this project.
The claimant must sign an affidavit of acceptance of conditions
of approval prior to commencement of any restorative actions.
6.
Effective Date. Any decision of the planning commission made pursuant to Section 17.45.060 takes effect 10 calendar days from the date of adoption of a resolution unless an appeal is filed. If appealed, the effective date is the date on which final action is taken by the city council.
7.
Appeal.
Any decision made by the planning commission may be appealed to the
city council. Appeals shall be addressed to the city council on a
form prescribed by the city and shall state all grounds for the appeal.
Any appeal must be filed with the city clerk within 10 calendar days
of the planning commission's adoption of its resolution regarding
the view preservation permit. Appeals shall be accompanied by the
filing fee as adopted by resolution of the city council, and shall
be processed and noticed in the same manner as the original view preservation
permit application. Public notice of an appeal hearing shall be given
in the manner required by subsection (D)(3).
(Ord. 378 § 3, 2014)
Planning commission decisions regarding view preservation shall
be binding on all current and future owners of claimant's property
and foliage owner's property, and such decisions must be disclosed
by each owner to subsequent owners of the property.
(Ord. 378 § 3, 2014)
A.
Failure to abide by the terms and conditions of a view preservation permit shall constitute a violation punishable in accordance with Section 1.16.010.
B.
In addition to all penalties authorized by Section 1.16.010 or any other provision of law, violations of any view restoration permit granted pursuant to this chapter are subject to the administrative penalty provisions of Chapter 1.10. Each day that a violation continues shall constitute a separate offense.
C.
To
the extent any foliage is in violation of the terms of a view preservation
permit shall constitute a public nuisance.
D.
Nothing
in this chapter shall be construed as preventing a claimant or foliage
owner from bringing a civil action against a foliage owner to enforce
the terms of a view preservation permit.
(Ord. 378 § 3, 2014)
A.
The city shall not be liable for any damages, injuries, costs or expenses which are the result of a decision issued by a city employee or official or any agreements or determinations resulting from mediation, arbitration or litigation concerning view restoration claims or a claimant's assertions pertaining to views granted or conferred herein. Nor shall the city have any liability because a particular neighborhood or overlay district is granted or denied an exemption pursuant to Section 17.45.130 of this chapter.
B.
Under
no circumstances shall the city have any responsibility or liability
to enforce or seek any legal redress, civil or criminal, for any decision
that any other person or entity makes concerning a view preservation
permit.
(Ord. 378 § 3, 2014)
Subject to the limitations in Section 17.45.020, and consistent with the process and procedures set forth in this chapter, property owners shall have the private right of action to restore a pre-existing view, as defined in Section 17.45.030 that has been significant obstructed by foliage located within 1,000 feet of the point of the main viewing area from which the claimant's primary view corridor has been assessed. Property owners wishing to restore views protected by this chapter must proceed in accordance with the restoration procedure set forth in Section 17.45.110.
(Ord. 378 § 3, 2014)
Claimants may initiate the restoration procedure as outlined
below.
A.
Informal discussion in accordance with Section 17.45.060(A).
B.
Mediation, in accordance with Section 17.45.060(B).
C.
Binding arbitration, in accordance with Section 17.45.060(C).
D.
Written Advisory Opinion. If the provisions of subsections A and B of this section are exhausted and do not produce a satisfactory result to the claimant, and the foliage owner has declined binding arbitration in subsection C, the claimant may request that the planning director assess and issue an advisory opinion on the view dispute. Such requests shall be made to the planning director in writing within 30 days after binding arbitration is refused or deemed refused. The planning director may, but is not required to, assist the parties in resolving the view equity dispute. It is the intention that the advisory opinion be admissible as evidence in any civil action.
(Ord. 378 § 3, 2014)
Restoration actions required by a view preservation permit,
agreed upon through mediation, or imposed by an arbitrator or a court
of law shall be consistent with the following guidelines.
A.
The
minimum restorative action shall be required to preserve or restore
the claimant's primary view.
B.
Restorative
action that will result in future stump growth should be avoided as
stump growth generally results in the hazard of weak limbs and is
not desirable. When considering restorative action for stump growth,
aggressive action is preferred.
C.
All
restorative actions shall be conducted in compliance with the California
Department of Fish and Game or U.S. Fish and Wildlife Service policies
and regulations, including the Federal Migratory Bird Treaty Act and
California Fish and Game Code Sections 3503, 3503.5 and 3513 which
prohibit taking of birds and their active nests, including raptors
and other migratory nongame birds. Restorative actions shall take
place outside of the breeding bird season (February 1st through September
1st) unless a nesting survey is conducted and confirms that no active
nests are located within the minimum buffer as determined by a qualified
biologist. A report discussing the results of nesting bird surveys
shall be submitted to the city biologist prior to any foliage removal
on-site.
D.
The
claimant and foliage owner shall make arrangements regarding access
to foliage owner's property for restoration actions. The claimant
shall select a certified arborist to perform the restorative action
and subsequent maintenance unless the foliage owner prefers to select
the arborist. If the foliage owner selects the arborist, the foliage
owner shall pay the claimant the difference between the fee charged
by the claimant's arborist and the foliage owner's arborist unless
a different allocation of cost is required by this chapter or by mutual
agreement of the parties.
(Ord. 378 § 3, 2014)
A.
Mediation
cost shall be borne by the claimant unless the parties involved agree
otherwise.
B.
Arbitration
cost shall be determined by the arbitrator, unless the parties involved
agree otherwise.
C.
For
view preservation permits and view restoration disputes, the claimant
shall be responsible for paying the cost of any required restorative
action and the foliage owner shall be responsible for paying the costs
of any subsequent maintenance of the subject foliage unless otherwise
agreed to by the parties or required pursuant to any final arbitration
decision or court order.
(Ord. 378 § 3, 2014)
The following types of foliage are exempt from the provisions
of this chapter.
A.
Foliage
that does not significantly obstruct a pre-existing view.
B.
Foliage
that is located more than 1,000 feet from the point where the claimant's
primary view is assessed.
C.
Foliage
that, in the opinion of the city biologist, meets the definition of
environmentally sensitive habitat area.
D.
Protected
trees.
E.
Foliage
located within the Malibu Country Estate Overlay.
(Ord. 378 § 3, 2014)
A.
Purpose.
The purpose of this section is to protect victims of disasters from
having primary view corridors established over their properties that
would unfairly limit the size and/or location of future replacement
structures or replacement landscaping damaged or destroyed by a disaster.
B.
Prohibition.
All properties within a disaster area are temporarily prohibited from
obtaining a new or updated primary view determination unless: (1)
the request was submitted prior to February 1, 2019; or (2) the primary
view determination would not impose any limitation on replacement
landscaping or replacement structures.
C.
Expiration of Prohibition. A temporary prohibition imposed by subsection B of this section shall expire: (1) for primary view determinations that would limit replacement structures, four years from the date of the disaster that created the disaster area at issue; and (2) for primary view determinations that would limit replacement landscaping, 10 years from the date of the disaster that created the disaster area at issue which can be extended up to five years if the planning director determines it is necessary for replacement landscaping to fully regrow.
(Ord. 450 § 4, 2019)
