RESOLUTION NO. 187
RESOLUTION OF THE BOARD OF DIRECTORS
OF THE PALOS VERDES HOMES ASSOCIATION ADOPTING
GUIDELINES AND ESTABLISHING PROCEDURES FOR IMPLEMENTING THE ASSOCIATION’S AUTHORITY TO MAINTAIN
VIEWS, AND A POLICY
THAT ENFORCEMENT OF THE ASSOCIATION’S AUTHORITY SHALL BE DONE BY INDIVIDUAL MEMBERS.
WHEREAS, ARTICLE
V, SECTION 7 OF THE DECLARATION OF
ESTABLISHMENT OF BASIC PROTECTIVE Restrictions, Conditions, Covenants, Reservations, Liens and Charges
and Certain Local
Restrictions (Hereinafter referred
to as “Restrictions”) of Palos Verdes Estates
and portions of Miraleste provides in part:
“Representatives of the Homes Association… shall have the right at any time to enter on or upon any property
for the purpose of cutting back trees or other plantings which may grow up to a greater height than in the opinion of the Homes Association is warranted to maintain the view and protect
adjoining property.”
WHEREAS,
The Board of Directors (the “Board”)
of the Palos Verdes Homes Association (the “Association” or “PVHA”) adopted
Resolution No. 146 in November 2000, Resolution 150 in November 2002, Resolution 156 in May 2005,
Resolution 159 in July 2006 Resolution 165 in March
2010, Resolution 169 in
March 2013, Resolution 172 in April 2015, Resolution 182 in July 2018 and Resolution 185 in May 2019 to establish procedures for its members to utilize
the authority of the Association to correct view impairments created by trees or other plantings;
WHEREAS,
the Association has had experience with Resolution No. 146, No. 150, No. 156 No. 159, No. 165; No. 169; No. 172; No. 182; and No.185;
WHEREAS,
it is the Association’s policy
to encourage voluntary resolution of view impairment disputes
between Members
who are directly involved whenever possible;
WHEREAS, PVHA
interprets “view” as follows:
A. For properties purchased prior to the date of enactment of this
Resolution, PVHA interprets “view” to mean the view that existed when the
Restrictions were filed, June 26, 1923;
B. For properties purchased subsequent to the enactment of this
Resolution, PVHA interprets “view” to mean the documented view that existed at
any time since the property was most recently purchased for fair market value
through an arm’s length purchase or sale, as evidenced by a deed.
WHEREAS,
the Association wishes to implement directives set forth in the Restrictions and adopt written procedures regarding
its view impairment authority so that members may better understand the procedures and remedies
available pursuant to Article V, Section 7, with the hope that this understanding will further promote
the voluntary resolution of view impairment disputes;
WHEREAS,
the Association wishes
to provide guidelines for the evaluation and resolution of view impairment disputes; implement
a clear process to residents for managing view issues
and establish procedures for its Members to utilize the authority of the Association to correct view impairments which cannot be resolved between the parties;
WHEREAS,
the Association hereby provides Members with this process
for the resolution of view impairment disputes;
WHEREAS,
the Restrictions do not state that the Association has the exclusive
enforcement rights;
NOW THEREFORE, BE IT RESOLVED
that the Board of Directors of this corporation does establish and adopt the following procedure
for the application of the Restrictions to view impairment disputes, and a policy that enforcement of view impairment disputes shall be done by individual Members, not the PVHA.
1. DEFINITIONS
“Scenic View” shall mean a view of the community
and its special
features such as landscapes, ocean, coastlines, city lights, canyons,
golf courses, parkland, architecture, and greenery. This visually impressive scenic vista is to be evaluated from the “Main Viewing Area” of the residence.
“Main Viewing
Area” shall mean the primary
living area of a residential structure. 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 primary living area of a residence.
Bedrooms, master bedroom retreats, offices, hallways, closets,
laundry rooms, mechanical rooms,
bathrooms and garages
shall not be considered main viewing areas.
“Significant View Obstruction” means a substantial obscuring of the scenic view, diminishing it’s attractiveness and enjoyment
by the Member.
The following unranked criteria shall
be considered in determining whether
a Significant View Obstruction has occurred:
- The extent to which the foliage obstructs
a scenic view from a Main Viewing
Area.
- The location of the obstruction within a view frame;
foliage located within
the center of a scenic view is more likely to be found to create
significant obstruction than obstruction located
on the outer edge of a scenic
view.
- The quality
of the scenic view being
obstructed, including obstruction of landmarks, vistas or other unique features.
- The extent to which the scenic view has been diminished over time by factors other than tree growth, such as new additions or residences.
- The extent to which the scenic view contributes to the value and enjoyment of the Member’s property.
2. VIEW RESTORATION PROCEDURE
The following process
shall be used in the resolution of view obstruction disputes between Members.
A. Initial Discussion
A Member who believes
that foliage on the property of another Member has caused a significant obstruction of scenic views from the Member’s main living
area shall be known as the Complaining party. A Complaining party shall notify the foliage owner in writing of such concerns. The notification should, if possible, be accompanied by personal discussions to enable the Complaining party and foliage
owner to attempt
to reach a mutually agreeable solution.
The notification to the foliage
owner should include
this statement:
A foliage owner who prevails
in litigation shall not be entitled to recover his/her/its attorneys’ fees and costs
if the foliage owner has declined to participate in the Initial
Discussion or mediation
processes set forth in Sections 2 A&B of this Resolution.
B. Mediation
If the Initial Discussion attempt fails, the Complaining party shall propose mediation as a means to settle the view obstruction dispute. The Complaining party shall invite,
by registered or certified letter
with return receipt, the foliage owner to participate in mediation.
A complaining party shall notify the PVHA of any request
for mediation pursuant to the provisions of this Resolution. Such notification and documentation shall be for the purposes of Association record-keeping regarding the use of this Resolution only, and shall not obligate the Association to assist or advise a Member or participate in the dispute
resolution process in any way.
The foliage owner shall have twenty (20) 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 by registered or certified
letter with return receipt within
twenty (20) calendar
days shall be deemed a refusal of mediation.
Acceptance of mediation by the foliage owner shall be voluntary. If mediation is accepted, the parties shall mutually agree in writing upon a mediator within twenty (20) days of the acceptance of mediation, unless a different date is mutually agreed
upon, or the offer of mediation shall be deemed to have been declined.
If mediation is accepted,
the parties shall conduct a mediation within forty- five (45) calendar
days of the foliage owner’s acceptance of mediation, unless a
different date is mutually
agreed upon in writing. It is recommended that the services of a professionally trained mediator
be employed.
The mediation meeting may be informal. The mediation process
may include the hearing of viewpoints of lay or expert witnesses, and may include a site visit to the properties of the Complaining party and the foliage owner.
The mediator shall
consider the purposes and policies set forth in this Resolution in attempting to help resolve
the dispute. The mediator shall not have the power to issue
binding orders for restorative action, but shall help the parties to resolve
their dispute by written agreement
in order to reduce
the potential
for litigation.
A complaining party shall provide
the PVHA with a copy of a mediated agreement reached pursuant to this Resolution. Such notification and documentation shall be for the purposes of Association record-keeping regarding the use of this Resolution only,
and shall not obligate the Association to assist or advise a Member or participate in the dispute
resolution process in any way.
C.
Litigation
(a) In those cases where the Initial
Discussion process fails, and mediation is declined by the foliage
owner, or fails, civil action may be pursued
by the Complaining party for resolution of the view obstruction dispute in
the Superior Court
under the provisions of this Resolution.
(b) A Complaining party shall provide
the PVHA with a copy of the lawsuit, and any settlement agreement. Such notification and documentation shall be for the purposes of Association record-keeping regarding the use of this Resolution only, and shall
not obligate the Association to assist or advise a Member
or participate in the dispute resolution process in any way.
3.
Apportionment
of costs
- Cost of mediation. The Complaining party and foliage owner shall agree on the allocation of mediation costs, or allow the mediator
discretion for allocating costs.
- Cost of litigation. To be determined by the court or through
a settlement, subject to the following exception: a foliage
owner shall not be entitled to recover his/her/its attorneys’ fees or costs if the foliage owner declined
to participate in the Initial Discussion or mediation process
set forth in Sections 2 A&B, above. The notice of the view obstruction dispute and the request for mediation provided by the Complaining party in accordance with Section 2 shall inform the foliage owner of this provision, and the consequences of
non-participation in the Initial Discussion and mediation processes.
- Cost of restorative action.
To be determined by mutual agreement or court order.
The PVHA advises that the following criteria be applied to Restorative
actions:
(a) Trimming of trees and shrubs should conform
to ANSI standards and be performed by an
ASI licensed arborist;
(b) Topping and severe pruning should be avoided
due to the damage such practice causes to the tree’s form and health;
(c) Restoration actions may include, but are not
limited to the following, in order of preference:
(1)
Trimming. Trimming is the most
preferable purning technique that removes excess foliage and can improve the
structure of the tree;
(2)
Vista Pruning. Vista pruning of
branches may be utilized where possible, if it does not adversely affect the
tree’s growth pattern or health. Topping
should not be done to accomplish vista pruning;
(3)
Crown Reduction. Crown reduction
is preferable to topping or tree removal, if it is determined that the impact
of crown reduction does not destroy the visual proportions of the tree,
adversely affect the tree’s growth pattern or health, or otherwise constitute a
detriment to the tree(s) in question;
(4)
Stand Thinning. The removal of a
portion of the total number of trees from a grove of trees, without any
replacement plantings;
(5)
Topping. Eliminating the upper
portion of a tree’s trunk or main leader.
Topping is only to be permitted for trees specifically planted and
maintained as a hedge;
(6)
Heading. Eliminating the outer
extent of the major branches throughout the tree. Heading is only to be permitted for trees
specifically planted and maintained as a hedge;
(7)
Tree/Vegetation Removal. Tree or
vegetation removal, which may be considered when the abovementioned restoration
actions are judged to be ineffective and may be accompanied by replacement
plantings or appropriate plant materials to restore the maximum level of
benefits lots due to tree removal;
(d) LA County Fuel Modification standards also
apply to Palos Verdes Estates, restricting tree placement and limiting the
height of hedging depending upon their distance from structures. Refer to LA County Fuel Modification
specifications when selecting replacement vegetation.
(e) The California Department of Fish and Game
restricts trimming during the breeding season of raptors and other migratory
non-game birds February 1 through September 1.
Refer to the Federal Migratory Bird Treaty Act and the California Fish
and Game Code sections 3503, 3503.5 and 3513, when scheduling restorative
actions;
(f) Inclusion of a maintenance schedule in the
agreement for trimming based on the individual species of tree and future view
impacts.
5.
Liabilities
- Members agree
that the use of the process
set forth in this Resolution shall not create any liability on the part of PVHA.
PASSED,
APPROVED AND ADOPTED this 28th day of April, 2020.
Marlene
Breene – President
Attest:
Savery Nash
– Manager
