The Malibu City Council is set to debate the controversial citywide view restoration ordinance again on Monday. The Malibu Times polled representatives from other cities with view ordinances about their success, and received widely ranging answers.
By Homaira Shifa / Special to The Malibu Times
On Monday, the Malibu City Council is expected to give city staff final directions before it drafts the much-debated citywide view restoration ordinance.
The city's current draft ordinance would give property owners the right to claim views that existed either at the time of the city's incorporation in 1991 or whenever they purchased their property, whichever is more recent.
A controversial aspect of the current ordinance is a provision that the Malibu Planning Commission would make a decision on a view determination if two neighbors fail to reach an agreement after mediation and binding arbitration.
Critics of the ordinance say involving the city in view disputes will lead to costly lawsuits for the city.
The current draft ordinance draws inspiration from Rancho Palos Verdes, Santa Barbara, Beverly Hills and other cities that have already adopted ordinances. Representatives from those cities report experiences with view ordinances that range from positive to mixed results.
Rancho Palos Verdes adopted a view restoration and preservation ordinance in 1989 after a voter referendum. That ordinance differs from Malibu's in that even new property owners can request view determinations to cut trees on neighboring properties that have been standing in some cases for as long as 50 years.
“I can tell you no one is really enamored with the ordinance because it does pit neighbor versus neighbor,” Joel Rojas, community development director for Rancho Palos Verdes, said.
The city incurred hefty legal fees defending itself at first.
“The city has spent hundreds of thousands of dollars defending the ordinance,” Rojas said.
The biggest lawsuit the city faced was in 1998, when resident Jon Echevarriet was ordered to trim eight of his trees after his neighbor filed an application to restore his views. Echevarriet unsuccessfully appealed the decision to the City Council, then filed a lawsuit in state Superior Court questioning the constitutionality of the ordinance.
After a long battle, the court ultimately ruled that the ordinance is constitutional. But that didn't put an end to the lawsuits.
“None of the residents have won the lawsuits,” Rojas said. “But, they are still coming up because people are fighting to save their trees.”
Rancho Palos Verdes City Planner John Alvarez said residents raise view issues on a daily basis, but most of those are now resolved through mediation. Alvarez said the city's planning commission generally rules on one or two view cases per year.
The City of Santa Barbara adopted a view restoration and preservation ordinance in 2002. In an effort to avoid lawsuits, they clearly stated nonliability on the ordinance, and left it up to the property owners to resolve the matter.
“The city attorney and I thought it wasn't a wise use of public funds to get involved in private property disputes,” Bettie Weiss, the city's planning director, said. “The ordinance is just a mechanism for mediation between property owners.”
Malibu's draft ordinance currently includes similar language requiring property owners who make view claims to indemnify the city against lawsuits if they are unsuccessful, and to pay legal costs the city incurs defending itself. However, some have questioned whether that language will stand up in court.
In Rancho Palos Verdes, the city has to see the legal process through and then recoup money from unsuccessful litigants.
“We can't [indemnify the city] because we are required to enforce the ordinance,” Rojas said. “If there's a private agreement the city's not involved. But if the city makes a decision, we have to enforce that decision.”
Most of the city's current legal fees don't come from lawsuits, Alvarez said, but rather tree owners who refuse to allow city planning staff on their property to make view determinations. The city attorney must then go to the courts to procure an abatement warrant. Including staff time, the process usually costs the city between $3,000 and $7,000, which Alvarez said it often recoups by requiring property owners who refuse the city access to their property to pay if they lose the battle for the abatement warrant.
Beverly Hills enacted a view ordinance that went into effect Jan. 6. For most of the city, it includes only view preservation and not restoration so as to avoid lawsuits. However, a view restoration ordinance was adopted for one area of the city called Trousdale Estates that sits on a hill.
“There's good and bad with the restoration,” Michele McGrath, the city's senior planner, said. “It's hard to determine what views were like when the property was purchased. There's really no evidence for that. So we opened things up.”
While the view restoration ordinance for the Trousdale Estates area is new, it enjoys support from the Trousdale Estates Homeowners Association.
Jeff Hyland, a local Realtor who sits on the association's board of directors, said when homes in the area were built, they all had views. But as time went by bushes and trees blocked the views.
“Not having a view is a million-dollar loss to the property,” Hyland said. “The ordinance will have a positive effect on the city. Property values will go up. It's a win-win situation for everybody.”