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.
the Association wishes to implement directives set forth in the Restrictions
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.
“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.
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.
(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.
- Restorative Action
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.
- 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
Savery Nash – Manager