Proposed View Resolution submitted by former mediator, Charles Peterson

RESOLUTION NO. _
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 NOT
PVHA

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 provided 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, and Resolution 169 in March 2013, 172, 182 and 185 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, PVHA interprets “view” to mean the view that existed when the Restrictions were filed;

WHEREAS, it is the Association’s policy to encourage resolution of view impairment issues between parties who are directly involved, whenever possible;

WHEREAS, in the course of resolution the parties frequently agree to the removal of trees or other plantings; removal requires the agreement of parties. The Association does not compel removal of trees or plantings without such agreement;

WHEREAS, the Association wishes to implement directives set forth in the PVHA CC&R’s (Refer to ‘Excerpts’ document) 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 settlement by the parties;

WHEREAS, the Association wishes to provide guidelines for the evaluation and resolution of view 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, California Civil Code section 5975, entitled Enforcement of Covenants and Restrictions in Declarationstates at Section (a) “The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of and bind all owners of separate interests in the development. Unless the declaration states otherwise, these servitudes may be enforced by any owner of a separate interest or by the association or both.”

WHEREAS, the Declaration of Establishment of the Basic Protective Restrictions does not state that the Association has the exclusive enforcement rights;

WHEREAS, enforcement of a PVHA decision to remove a view obstruction generally benefits only one member;

NOW THEREFORE, BE IT RESOLVED that the Board of Directors of this corporation does establish and adopt the following procedure for the processing of all view obstruction disputes, and a policy that enforcement of view obstruction disputes shall be done by individual Members not PVHA.

1. DEFINITIONS

“Cutting back trees or other plantings” shall refer to trimming according to INSA standards.

“Framed View” means a directed scenic view softened with vegetation to draw the eye into the landscape

“Scenic View” shall mean a view of the community and its special features such as landscapes, ocean, city lights, canyons, golf courses, parkland, architecture, and greenery. This visually impressive scenic vista is to be evaluated from the established “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.

“Undesirable” Tree” shall refer to a tree that is causing significant view obstruction, a tree that is not properly maintained causing poor health and a disfigured appearance, or a tree causing a safety risk. The undesirable tree may be an invasive species, or pose a fire hazard. Often the undesirable tree is a volunteer, not shown on an approved plan. 

“Significant View Obstruction” means a substantial obscuring of the view, diminishing its attractiveness and enjoyment by Members.

        The following criteria shall be considered in determining whether a significant view obstruction has occurred:

 A. When considering a view obstruction dispute, the parties, the mediator and the Court shall respect and, to the greatest extent practicable, shall strive to preserve or enhance “framed views”. Framed views are an important feature in Olmsted designs and were a major consideration in the planning of Palos Verdes Estates. Consideration shall be given to the composition of the view as one would look at a painting. The parties, the mediator and the Court shall consider proportion, and a harmonious blending of features in keeping with the overall vista.

B. The extent the foliage obstructs a pre-existing view and/or primary view, both currently and at foliage maturity.

C. 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.

D. The quality of the primary view being obstructed, including obstruction of landmarks, vistas or other unique features.

E. The extent to which the primary view has been diminished over time by factors other than tree growth, such as new additions or residences.

F. The extent to which the primary view contributes to the economic value and/or enjoyment of the claimant’s property.

2. VIEW RESTORATION PROCEDURE

            Members who are unable to resolve a view obstruction dispute in an informal neighborly manner may elect to take the next step to mediation or litigation, in ascending order. The goal would be to reach a practical solution within the guidelines set forth by PVHA.

            The following process shall be used in the resolution of view obstruction disputes between Members.

A. Initial reconciliation

            A Member who believes that tree growth on the property of another member has caused a significant obstruction of views from the primary living area shall notify the tree owner in writing of such concerns. The notification should, if possible, be accompanied by personal discussions to enable the complaining party and vegetation owner to attempt to reach a mutually agreeable solution.

B. Mediation

            If the initial reconciliation 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 vegetation owner to participate in mediation.

            The vegetation owner shall have no more than 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 with return receipt within twenty (20) 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 within twenty (20) days of the acceptance of mediation, or the offer of mediation shall be deemed to have been declined.

            If mediation is accepted, the parties shall conduct mediation within forty-five (45) calendar days of the acceptance of mediation, unless a different date is mutually agreed upon. 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 shall include a site visit to the properties of the complaining party and the tree 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 strive to enable the parties to resolve their dispute by written agreement in order to reduce the potential for litigation.

            In order to be valid, an agreement between parties must be in agreement with the policies and guidelines of PVHA. (See, agreement requirements)

            Members may also wish to consult with an ISA licensed arborist to document the condition and value of the tree, and for advice on the best management of the tree. At the conclusion of negotiations submit a copy of the agreement to PVHA for review and addition to the property file.

C. Litigation

            (a)  In those cases where the initial reconciliation process fails, and mediation is either declined by the tree owner or fails, then civil action may be pursued by the complaining party for resolution of the view obstruction dispute under the rights and provisions of this chapter in the Torrance Superior Court under the provisions of this chapter.

            (b)  The litigant must state in the lawsuit that initial reconciliation failed and that mediation was either declined by the tree owner or failed, and that a copy of the lawsuit was filed with the Homes Association. A copy of any order or settlement agreement in the lawsuit shall also be filed with the Homes Association.

Apportionment of costs

            (a)  Cost of mediation. The complaining party and vegetation owner shall each pay fifty percent of mediation fees, unless they agree otherwise or allow the mediator discretion for allocating costs.

            (b) Cost of litigation. To be determined by the court or through a settlement.

            (c)  Cost of restorative action. To be determined by mutual agreement or court order.

Liabilities

            (a) Use of this View Restoration process shall not create any liability of the Homes Association.

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