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HomeMy WebLinkAbout04-08-1999 Special City Council MiinutesMINUTES SPECIAL CITY COUNCIL MEETING CITY OF LAKE ELSINORE 183 NORTH MAIN STREET LAKE ELSINORE, CALIFORNIA THURSDAY, APRIL 8,1999 ........................................................................, CALL TO ORDER Mayor Kelley called the Special City Council Meeting to order at 3:02 p.m. PLEDGE OF ALLEGIANCE Councilman Schiffner led the Pledge of Allegiance. ROLL CALL PRESENT: COUNCII,MEMBERS: ABSENT: COUNCILMEMBERS: BRINLEY, METZE, PAPE, SCHIFFNER, KELLEY NONE Also present were: City Manager Watenpaugh, Assistant City Manager Best, City Attorney Leibold, Administrative Services Director Boone, Community Services Director Sapp, Community Development Director Brady, Public Warks Manager Payne, Police Lieutenant Horton and Deputy City Clerk Bryning. CLOSED SESSION City Attorney Leibold announced the following items for Closed Session: a. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION (Government Code Section 54956.9 (a)) - Marshall Field vs. O'Connor & Company Securities, etc., et al - Case No.: NASD #98-00222. (F:52.1) b. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION (Government Code Section 54956.9 (a)) - Lake Elsinore Recreation Area vs. City of Lake Elsinore, et al - Case No.: 302435. (F:52.2) THE SPECIAL CITY COUNCIL MEETING WAS RECESSED TO CLOSED SESSION AT 3:05 P.M. THE SPECIAL CITY COUNCIL MEETING WAS RECONVENED AT 3:38 P.M. WITH THE FOLLOWING ANNOUNCEMENT BY CITY ATTORNEY LEIBOLD: PAGE TWO - SPECIAL CITY COUNCIL MINUTES - APRIL 8,1999 a. NO REPORTABLE ACTION IN CLOSED SESSION WITH REGARD TO MARSHALL FIELD VS O'CONNOR AND COMPANY SECURITIES ETC. ET AL - DISCUSSION OF SETTLEMENT NEGOTIATION. b. NO REPORTABLE ACTION IN CLOSED SESSION WITH REGARD TO LAKE ELSINORE RECREATION AREA VS CITY OF LAKE ELSINORE - STATUS REPORT. BUSINESS ITEM Ur~encv Ordinance No. 1044 - Re ag rding Palm Tree Preservation F:166.3 City Manager Watenpaugh noted that Council received testimony regarding the unauthorized and illegal removal of palm trees at the March 26th, City Council Meeting. He explained that staff was directed to review and develop an ordinance establishing a program to protect and preserve; and control the removal of the City's significant palm trees. He indicated that City Attorney Leibold had prepared an urgency ordinance to address this issue. Mayor Kelley called upon the persons who had requested to speak as follows: David Scholder, 16867 Ulmer Street, stated that when questioned, the people who were taking the palm trees produced false bills of sale. He indicated that there is considerable confusion regarding who owns the palm trees. He noted that it is not known which palms are in the City right-of-way and which palms are on private property. He stated that he did not want to infringe on personal rights, however this situation needs some type of control to prevent illegal removal of the trees. He noted that the investigation process done by the City was less than adequate, and since the residents have been calling the Police, there are trees that were marked for removal that have not been touched. He indicated that the people that were illegally removing trees got scared when the citizens took action. Bill Limebrook, 29444 Kalina, concurred with the previous speaker. He requested the opportunity to review the ordinance. Willeta Graves, 16748 Gunnerson, thanked the City Council for their attention to this matter. She explained how important the palms are in the summer, since it is the only green in the area. She noted that where the palms have been removed, the mess is left behind and the palm fronds and hole are a health and safety hazard. She stated that it is a shame that people are removing the palms, since they lend real beauty to the area. PAGE THREE - SPECIAL CITY COUNCIL MINUTES - APRIL 8,1999 Pat LaPere, 16867 Wells, stated that they drive up Gunnerson every day on their way to and from work; noting that it is a beautiful street because of the palms and she would like to see it remain that way. She stated that she would like to see CR & R place a large dumpster on Arnold and Gunnerson, and explained that she and her neighbors could then help clean up the area. Ray Johnson, 26785 Camino Seco, Temecula, addressed the section of the ordinance which deals with "Significant Palm(s)" and stated that he agreed that the Canary Island Date Palm and the California Fan Palm are significant since they grow well in Las Vegas, however he felt that the Mexican Fan Palm was of low value and not significant. He noted that there are species not mentioned and those are the Windmill Palm, the Mediterranean Fan Palm, Senegal Date Palm and the Pindo Palm. He noted that these trees are also slow growing and expensive trees along with the other two mentioned in the Ordinance. Mr. Johnson stated that the Council might wish to add the aforementioned palms to the list. He suggested that if Council wished to leave the Mexican Fan Palm, then it should be at a 20-foot height. He stated thaf he had some concern regarding the permit procedures which require that relocation is accomplished by qualified personnel under the direction of the Director of Community Services or his ' designee. City Attorney Leibold explained that at the direction of the Director of Community Services, a City staff person could be on site for removal and relocation. She noted that there would be inspections to be sure that the specifications for compaction and location of equipment are met. Mr. Johnson questioned if the City wanted to have this apply if the owner is simpiy relocating a palm on their own property. He further noted that the City has no exemption from compliance with the Ordinance. City Attorney Leibold stated that-as drafted it is not intended to have the City exempt from the Ordinance and the City will have to comply with the same stated procedures. Chris Hyland, 15191 Wavecrest Drive, asked why it took so long to take action regarding removing trees off of the wrong property. She noted City Council Minutes that were done on January 13, 1998, and explained that in that report it was mentioned that people were stealing palm trees. City Attorney Leibold stated that the issue which was addressed on January 13, 1998, was about trees in the public right-of-way. She explained that this ordinance was proposed in respect to trees being removed from private property. She further clarified the January 13, 1998 report. Carol Robinson, Sunset Palm Tree Service, 685 Parkview Drive, stated that her company was not aware of the meeting of January 13, PAGE FOUR - SPECIAL CITY COUNCIL MINUTES - APRIL 8,1999 1998. She stated that her company was viciously attacked by all of the people in the room, as well as the Council for things that are not true. She stated that all of the company vehicles are clearly marked with their name and phone number. She questioned why Mayor Kelley called on of their clients and told them that they were ripped off and could have gotten $200 to $400 per foot for their palm trees. She stated that when the lots in the subject area are developed, trees are destroyed when the driveways are placed; and her company does not destroy the trees, they remove them and save their lives. She e~lained that when they remove trees, they use a surveyor that the City has used and establish property lines to avoid taking trees from the wrong locations. She stated that they ha~e complied with all the requirements of the City and she would like to see this end. She stated that she would like to take the trees that they ha~e paid for months ago. Ms. Robinson stated that they are not the only company working in the area removing trees and her company has a good reputation in all of the other areas they work in. She indicated that she resents the fact that anyone would accuse them of stealing or cheating their clients. Mayor Kelley stated that when she talked to Mr. and Mrs. Laferty she did not use the term ripped-off and what she did tell them was to make sure that they got the true value of the tree. She indicated that according to her information the going price is approximately $200 a foot. Dick Knapp, City Treasurer, stated that he had tried to stop the tree removal back in 1989, 1992, 1995 and even last year. He noted that last year whole rows of trees on Herbert Street were wiped out. He further stated that a lot of the trees were not properly removed since the holes were not properly filled and the fronds were ieft behind. He indicated that several contracts were falsified and nothing was done about it. He noted that in the Ordinance it calls for the owners signature and he felt that it should also read that the signature should be notarized with proof of ownership. Gregory Schumm, 686 Parkview Drive, stated that there are already too many laws to deal with. He suggested that this should be done on an individual basis, property owner to property owner. He stated that he felt that everyone had a right to do what they want on thier own lot. He stated that if they have trees on their own lot, then they should be able to sell them. George Alongi, 649 Mill Street, stated that there are good points on both sides of this issue. He noted that in 1998, the issue that came before City Council was to save the palm trees because Edison was destroying them. He noted that the Ordinance only pertains to the property owner and this is just another ordinance or ariother law that PAGE FIVE - SPECIAL CITY COUNCIL MINUTES - APRIL 8, 1999 the City will not enforce; not to mention the expense of doing this ordinance. He indicated that he likes the trees, however the City should stick to the trees that are in the public right-of-way and not what is on private property. He asked why he should have to get a permit to remove a tree from his own private property. He stated that what will happen is that the tree will be cut down at night and hauled away the next day, instead of saving the tree and using it elsewhere. He suggested that a commission be developed to address the trees and have them set up a fund to purchase trees. He explained that in this way the trees can be removed from the property and then placed somewhere else in the City. Mr. Alongi stated that he felt that people were getting Code Enforcement issues confused with ordinances. He stated that the trees represent beauty, however it should be handled correctly. He noted that the palms are not an endangered species and in reality they are just a tree and should be treated as such when they are on private property. He commented on the beauty of the palm trees in that area and suggested that if a resident in the area sees _ someone taking a tree, they should call the Sheriff or City Hall to be sure that they are legitimate. He indicated that there is a more constructive way to stop the theft of the palms than doing an ordinance. Suzie Rupnow, 16520 McPherson Circle, stated that the palm trees not only ha~e aesthetic value, they are also historical. She indicated that they have been in e~stence for over 25 years and the trees are an identifiable City landmark, which appears on the City Seal. She noted that there are a lot of people who could not attend because of the hour of the meeting and she asked that this item be continued to give all the residents in the area the opportunity to have input. She indicated that in her opinion there should be a 6-month moratorium placed to prevent removal of the trees until a study can be done to find a solution. She noted a discussion she had with Edison and they informed her that the power lines could be placed underground, however it is costly. She stated that the residents would like Edison to produce a list of how many trees they have topped and how many they will top in the future. She indicated that if they are topped correctly they can grow back and the power lines can be moved. She stressed the need for a moratorium. Mayor Kelley stated that she had looked into putting the power lines underground on Lakeshore and explained that it would cost $1,000,000 a mile. She asked the City Attorney to address the moratorium. City Attorney Leibold stated that she is uncomfortable advising the City Council that a moratorium is a viable alternative. She further stated that what cities can do as governmental entities with police powers, is to regulate private property and private activity. She PAGE SIX - SPECIAL CITY COUNCIL MINUTES - APRIL 8, 1999 eaplained that what has been prepared for City Council is an ordinance that would regulate the removal or relocation of significant palms. She indicated that it is an urgency ordinance that will take effect immediately upon adoption of a 4/5~'S vote. Susie Rupnow asked if this ordinance takes effect immediately, could the residents ask for amendments at a later time. City Attorney Leibold stated that is an option and explained the procedure of an amendment versus an urgency ordinance. She suggested that if the palms must be removed from the public right-of-way they be placed in public parks for shade, rather than in other right-of-ways. Mayor Kelley clarified the ordinance before Council and noted that the action of topping palm trees in the public right-of-way is a different issue. City Attorney Leibold explained that the City has a policy regarding the preservation of trees that are going to be topped due to interference with utility lines and this ordinance would regulate all removal or relocation of significant palms including those in the public right-of-way. Ken Howard, 17540 Grand Avenue, stated his objection to the proposed ordinance. He asked if the ordinance could be made retroactive. He explained that he has 16 palm trees on his property and asked how many Council would require on one acre of ground. He indicated that he has sold 10 palm trees on a piece of property that he owns on Shrier Street. Mr. Howard explained that he has just received a Weed and Nuisance Abatement Notice, which includes lot clearance and requires trimming and removal of palm fronds. He noted that he clears his property every year and stated that the City does not clean up their palm fronds on their own property, yet the City is trying to tell private individuals what to do. He stated that if the City does not perform their own clean-up, then he demands that the City refund his taxes and allow him to keep a watchman on his property. He further stated that the roadways are like creek beds and yet he pays the same amount of taxes that other people pay on paved streets. He stressed that he will be demanding a lot of money back for the work that he has done over the years that the City does not do itsel£ He indicated that he owns the palm trees and pays taxes on them and he intends to keep the largest palm trees, however he has sold 10 of the medium palm trees; the contract has been signed; and he intends to pursue the sale of his trees. Mr. Howard stated that he does not believe that the City can make an ordinance retroactive that can cancel out a contract that he has already entered into. Mayor Kelley clarified that Mr. Howard has sold 10 of his trees by contract and asked if this has been processed through City Hall. Mr. Howard stated that the City had the application for the permit two days ago. Mayor Ke11ey asked if the trees ha~e been removed. Mr. Howard stated that they have not. PAGE SEVEN - SPECIAL CITY COUNCIL MINUTES - APRIL 8,1999 City Attorney Leibold stated that there is strong case law precedent that says that an ordinance adopted, pursuant to a city's police powers, can apply retroactively. She indicated that it is an issue that she is looking at and the proposal that she would make to Council is to allow her to work together with the Community Services Department to contact those individuals directly to determine whether or not the ordinance will apply to them or not. Bill Limebrook, 29444 Kalina, stated that Lake Elsinore is where he can afford to live and it is a beautiful place because of the trees and the mountains. He noted that there are several tree companies that are after the palm trees and also people who don't care about the community or the neighborhood that continue to sell the trees, dooms them to extinction. He stated that the ordinance was not strong enough and the trees should be protected or else they will completely disappear. He stated that he felt that the ordinance had too many loopholes. City Manager Watenpaugh indicated that the City of Lake Elsinore is not the only community in Southern California loosing palm trees. He noted that people are trying to work through the system to do it properly. He noted the thefts in other communities and suggested that it has nothing to do with being rich or poor, because it is happening everywhere. He stated that the City must be careful about regulating what people can and can't do on their own property; and enforcement is an issue. City Manager Watenpaugh stated that a tremendous amount of staff time has already been spent trying to respond in a positive manner to concern of the citizens regarding loosing palm trees. He noted that the City was trying to be responsive to the loss of palms under power lines and with Council direction was able to relocate the palms. He explained that was where the whole issue started. He noted that some of the palms would be used; to landscape Railroad Canyon Road, which is in the City, and wi11 save some money. He stated his concem regarding going retroactive, however he indicated that it is up to the City Attorney. He addressed the audience and stated that the City Council is trying to be responsive and he hopes that they understand that. He explained that the purpose of this Meeting was held because the community wanted something done quickly. Councilman Pape asked what the penalty would be if someone does not pull a permit. City Attorney Leibold stated that if a significant palm is removed without a permit, it is a violation of the Municipal Code and in that case any violation of the code is a misdemeanor punishable by $1,000 or 6 months in jail, unless at the discretion of the City Attorney the violation is prosecuted as an infraction, in which case the fist citation is a fine of $100; the 2°d is $200; and the 3rd is $500. Councilman Pape questioned who would handle the issue if it were handled as a misdemeanor. City Attorney Leibold stated that the PAGE EIGHT - SPECIAL CITY COUNCIL NIINUTES - APRIL 8,1999 City Attorney refers it to the District Attorney. She eaplained that violations are generally prosecuted as infractions, however that is a discretionary determination whether violations are pursued as infractions or misdemeanors. Councilman Pape stated that if someone is intentionally going out in the middle of the night breaking the ordinance, they should be pursued with all vigor. He noted the permit application fee and asked if Council would be establishing the permit fee today. City Attorney Leibold stated that portion would come before Council at the 2°d Meeting in April. Councilman Pape asked much the fee would be. Community Services Director Sapp stated that it would be approximately $615 per application and a permit would have to be issued for each individual tree. Councilman Pape asked if it would be possible to require a deposit to insure that the hole is properly filled and there is no damage to the curb ar street and the fronds are hauled away. City Attorney Leibold stated that it would be part of the conditions that the Director may impose in approving the permit. She stated that it depends on facts and circumstances, which would be based on the location of the palms; the size and weight of equipment that would be used; the manner of removal and depending on those circumstances there might be a bond required. Councilman Pape stated that he felt that there should be some type of cash deposit so that if the contractor does not take care of the proper clean up and closure of the hole, then the City could do the job. He asked if the City Attorney was saying that the contractor or owner must have some type of insurance, and the City would have to deal with the insurance company to enforce the clean up. City Attorney Leibold stated that either or both can handle it and it is a discretionary determination as a condition of approval in the permit process. She noted that this is provided far in Section 5.78.090. Councilman Pape asked if the language encompassed liability and worlcers compensation. City Attorney Leibold ga~e an overview of the requirements and noted that it is much the same as building permits. She explained that when the City enters into a contract with a contractor, the City's own Risk Management concems always require that the contractor carry rather substantial protections and coverage. She indicated that the City follows the recommendation of the JPIA. She further indicated that the City also requires adequate bonds or other security anytime the City is entering into a contract. She eaplained that in this instance the City is regulating whether or not a private party can remove or relocate a palm and the requirements that the City can impose relate to what impact or what threat or danger there is to the Public, Health, Safety or Welfare, be it the public right-of-way ar other related issues. Councilman Pape asked if it was possible to provide advanced notice to the neighborhood, that a palm will be removed, like a sign being posted on the lot seven days prior to the removal. City Attorney Leibold stated that could be done and can be added to Yhe ordinance. He stated that he would like to see a notarized PAGE NINE - SPECIAL CITY COUNCIL MINUTES - APRIL 8, 1999 form signed by the lot owner that would be filed with the City which would state that the removal of the trees could have a negative impact on the surrounding areas. He stated that there have been comments from absentee owners that they were not aware of the controversy over the impact that it would have on the neighbors and if they had been aware, they might have done something differently. He stated that this would be one way of notifying them. He indicated that it should also be noted on the form that the trees are valuable. He asked if it were possible to add to the form the right for the owner to have seven (7) days to cancel the removal of the trees. City Attorney Leibold stated that there could be a period of time for the owner to rescind, however unless the City is party to the contract, the City cannot require the contractor to include that requirement. She indicated that it would be a private contract. Councilman Pape asked how the City could enforce keeping trees in good health. City Attorney Leibold stated that this section was included to prevent an owner from poisoning their palm to exempt them from the requirements of the ordinance. Councilman Pape stated that he is . uncomfortable with the sentence "Any person, firm, partnership, trust, or corporation that owns, controls, has custody or possession of any real properiy within the City that includes Significant Palms, shall maintain all Significant Palms located thereon in a state of good health to avoid removal." City Attorney Leibold stated that it is not necessary to have this sentence in the ordinance. Mayor Kelley reminded the audience that they have had their opportunity to speak and now it is the Council's turn to have their say. Councilman Pape questioned "Permit Application"- 5.78.040.020 and stated that he did not feel that the City had the right to.question the reason for removal or relocation. He stressed that it is not the City's business. He questioned Section 5.78.050.060 and stated that he does not agree with these section. He stated that if the owner has given his permission and has followed the permit procedure properly, then the City should comply. He stated that he did not feel that the City had the right to tell the property owner that they are the owners of the tree, however they cannot sell it. He stated that the purpose of this ordinance to allow people, especially absentee landlords the consequences of their actions by the sale of trees. He commented that if property owners fulfill all of their obligations, then the City should not intervene further. Councilwoman Brinley concurred with Councilman Pape and stressed that the documents must be notarized to verify ownership. She asked PAGE TEN - SPECIAL CITY COUNCIL NIINUTES - APRIL 8, 1999 Mr. Johnson to clarify the other species of palms that he named. Mr. Johnson stated that the addition of the palms that he felt were also significant were the Windmill Palm, the Mediterranean Fan Palm, Senegal Date Palm and the Pindo Palm. Councilwoman Brinley asked that they be added to the list of significant palms in the ordinance. Community Services Director Sapp stated that the palms named are all in the listed palm family. City Attorney Leibold stated that as drafted, the only palms that are regulated and require a permit under the draft ordinance are the Canary Date Palm, the California Fan Palm and the Me~can Fan Palm, and the only exemption under that category are trees under 5 feet. She stated that if there are other species of palm that merit protection, then they should be specifically identified. She further noted that Mr. Johnson suggested a different height restriction on the Mexican Fan Palm. Councilwoman Brinley asked Mr: Johnson if the other palm species mentioned e~st in the City. Mr. Johnson confirmed the species in the City. He suggested that the four species mentioned should be added to the list in the ordinance. Councilwoman Brinley stated that she is in favor of the moratorium because she felt that the concerned citizens needed the time to assemble to discuss the issue. She stated that she wishes to protect the resident's aesthetic view, however she wished to protect the property owners' rights as well. She indicated her concern regarding the right of the private property owner should he or she wish to build on his or her own property and it would be necessary to relocate or remove a palm to facilitate the building process. City Attorney Leibold stated that there is specific statutory authority in zoning matters that do not appear in this. Councilwoman Brinley stated that in regard to trees in the public right-of-way, the City should be able to place the trees that are endangered should be relocated where the City feels is best. She stated her concern regarding the preservation of the trees after they are removed from the ground. Community Services Director Sapp stated that staff would be responsible and on site to insure that the trees are handled correctly. ' Councilwoman Brinley stressed her concern for the person who wishes to build a room addition and must relocate or remove a palm. She stated that she does not want to restrict their rights. Mayor Kelley stated that Councilwoman Brinley's concern is valid and can be addressed in the `Bxemption" section of the ordinance, which would read reasonable development of property. Lieutenant Horton stated that one of the main problems is an absentee landlord. He stated that when the officer sees that a tree is being removed, and they don't have that property owner present, then it is difficult for the police to make a determination. He noted that the last time the police handled anything of this nature, it took over four hours and was finally determined that the property owner did not give his permission for the removal of the trees. He stated that he could understand the CounciP s concerns regarding the rights of private PAGE ELEVEN - SPECIAL CITY COUNCIL MINUTES - APRIL 8,1999 property owners, but without a permit in hand it is very difficult to make a determination. Councilwoman Brinley stated that they would only be exempt from paying for the permit because they have already pulled a permit for building, however they would still need a permit. City Manager Watenpaugh questioned the need for a fee for inspection, since the City will have to go back to be sure that the removal area has been properly compacted and the fronds have been cleaned up properly. Councilwoman Brinley stated they would be responsible for the inspection. She stressed that she does not want the burden of relocation or removal to be placed on a property owner who is in the building process because it would be too much like a penalty for having the palm. She stated that she wants the City to be user friendly. She clarified that it is only on privately owned property. Councilman Pape asked for clarification regarding inspections when doing additions and building a new home. City Manager Watenpaugh stated that staff wants to do what is right with the Council and the public, however it is getting very staff intensive and labor intensive for the general taacpayer to cover the costs to check on the trees. He explained that each thing inspected is charged and if the trees were going to be part of the inspection, then there should be an additional cost. Councilman Schiffner suggested that under Exemptions, verbiage be included that if the palm is relocated on the same property or removed due to interference of building with the approval of Building and Safety Department. Mayor Pro Tem Metze stated that it should be for the relocation of the tree on the subject property, because if the tree is being removed it is being sold and should require a permit. Councilman Schiffner stated that if the tree must be removed and it can not be placed elsewhere on the property, then it should be approved for removal by the Building and Safety Department. Councilwoman Brinley clarified her comments regarding relocation and removal of a palm due to building, however if the tree is removed, then it can be donated to the City,. She asked that it be included in the ordinance, that they have the option of moving the palm tree ar removing the tree and donating it to the City to be replanted in a public area. Councilman Schiffner stated that he is in favar of adding the four palm trees suggested to the Significant List. He noted the provisions in the ordinance that Councilman Pape brought up and stated that although it might be hard for the City to enforce the issues, it does not hurt to have those provisions in the ordinance and should it become necessary to protect the trees the City can perform enforcement. Councilman Schiffiier addressed the Permit Applicant and stated that Section .010 should read: "The acknowledged written permission from the record land owner as verified by the Community Services PAGE TWELVE - SPECIAL CITY COUNCIL MINUTES - APRIL 8,1999 Director or his designee." He stated that this would appear on a farm that could be set up by the Director, to verify in whatever manner he has at his disposal, to assure that it is the proper land owner. He cited Section.030 and stated that he felt that the plan or map survey should be tightened up and there should be a requirement showing an actual map showing the centerline of the street; locating the monuments at both ends of the centerline; and showing the distance from the centerline to the tree in question. He noted that the surveyors should have all of that information. He addressed Permit Procedures and stated that Section .060 should be deleted. City Attorney Leibold . stated that as drafted the ordinance presumes a"no net loss" of trees. She explained that the Condition of Approval would either be the relocation somewhere in the City or a replacement. Councilman Schiffner clarified that if one is then removed, it could be replaced with a tree somewhere in the City. He noted that if the City is to have a"no net loss" then the property owner could remove a tree due to building and have a tree planted somewhere else in the City, at the discretion of the Community Services Director. He stated that under the category of exemptions Councilwoman Brinley addressed relocation and removal for building; however he would like to see a section placed in the ordinance for trees in City right-of-way located in other areas of the City. He stated that he would hate to see the City have to go through all these procedures to move one of the trees to another landscape area or elsewhere in the City. He stated that he felt the City should be exempt to perform that act. City Attorney Leibold clarified Councilman Schiffner's comment. Councilman Schiffner noted that for the people in the audience who felt they needed more time to review the ordinance, he felt that it would not serve them to any great purpose, because what the ordinance does is to make it more difficult to remove a tree. He further explained that it does not prevent tree removal, however it does make it difficult. He stated that this is all the City can do, since it does not haee the authority to do more. Councilman Metze stated that he agreed with adding the other four species of palm, since it covers all bases. He indicated that the notarized letter from the owner does establish the legal signature of the owner, and can then be verified. He suggested that the ordinance include that the removal of the trees can only be done during City Hall hours and does not provide for weekends, therefore enforcement will be easier to establish as well as the contractor making the permit available on site. He asked if there were any permits out at this time. Community Services Director Sapp stated that there is one outstanding at this time; noting that one removal has been approved and he has requests for 19 more to be removed. City Attorney Leibold stated that her recommendation is to allow herself and the PAGE THIRTEEN - SPECIAL CITY COUNCIL MINUTES - APRIL 8, 1999 City Manager to discuss this with Community Services; and the individuals involved with the 19 trees will be contracted personally. Mayor Kelley asked how many landowners this involves. Community Services Director Sapp stated that it entails approximately 5 or 6 different landowners. Mayor Pro Tem Metze stated that he also had some concerns with the Permit Procedures: Conditions, Section .060. He stated that he approved of the tree removal being done only during business hours to allow verification. He stated that he does not feel that the City has the right to tell Mr. Howard that he cannot pull and sell his trees and he does not feel that a moratorium is a good thing. He clarified that he does feel that it is a good thing to allow the property owner to move a tree on their own property and agrees that if they don't find a buyer they can donate it to the City, however if they sell the tree they must follow the permit procedure. City Attorney Leibold explained that the City's police powers deal with the Significant Palm as a valuable asset and something that we can regulate, however the City cannot get into whether they are removing the tree because they are selling it or whether they are removing it because they are building. Councilwoman Brinley clarified her desire to be fair to the builder. City Attorney Leibold clarified that what is being proposed is an exemption for any property owner who is either going to relocate a tree on their own property or relocate the tree somewhere else in the City. Councilman Schiffner asked if it would be advisable to haee the whole ordinance relate only to trees within some specific distance of the public right-of-way, which would not include trees back on the property that could be in the way of a house. He indicated that he felt that what the people were most interested in are the trees that line the street. He suggested that the ordinance be for trees that are in the setback or within a distance of 10,15 or 20 feet from the,:right-of-way line. He stated that this would not affect the trees that Councilwoman Brinley is concerned about. Councilwoman Brinley concurred. City Attorney Leibold stated that could be done by defining Significant Palm as these varieties of palms that are located, and specify the amount. Community Services Director Sapp asked if it meant that any tree in the 20-foot right-of-way is exempt or if there is going to be a building permit issued. City Attorney Leibold stated that what she thought the proposal was the requirement to get a permit would apply to only those trees within some certain distance of the right-of-way. Councilman Schiffner concurred. Community Services Director Sapp PAGE FOURTEEN - SPECIAL CITY COUNCIL MINUTES - APRIL 8, 1999 asked if it was regardless of whether it related to the improvements of the property or any kind of construction. Councilman Schiffner stated that this would make it not involved with any kind of construction: Councilman Metze stated that would make it easier for those palms to just be sold and taken away. Councilman Schiffner stated that if they are back from the right-of-way, yes. Councilman Metze stated that he thinks that it is a problem to the people that live in that neighborhood, whether its within 10 feet of the right-of-way or 50 feet of the right- of-way, they are concerned with palm trees being gone. Councilman Pape questioned if the tree is in the back yard, who is going to see it. Councilman Metze asked what is considered the back yard if there is no house on it. He stated that he thinks that palm trees are being removed from vacant lots. Councilman Schiffner stated that the palms were planted along the right-of-ways and there are very few of them on the inside of the lots. Councilman Pape stated that the major part of the problem is no one is sure if the removal is on the right lot, and the only way to be sure is to go through the process. Councilman Metze stated that the ordinance can be amended if it turns out to be a problem, however for right now the point of having this meeting today was to do something now. There was general discussion and concurrence that if the tree is removed that it be placed somewhere in the City, along with the notarized signature of the property owner. Mayor Kelley stated that this is an unusual and sensitive circumstance to the community. She noted that all the people in the audience had the opportunity to be heard. She further noted that during the Council discussion she noticed several persons who raised their hands. She stated that without opening the discussion for debate, she felt that in the spirit of the subject, she would allow people who have an urgent question or suggestion to speak. Mr. Scholder stated that the City does not need to tell the contractor how to take care of the trees because once they are on the truck they are in the best hands on earth. He stated that prior to being on the truck is the problem. He further stated that the meeting today is for the benefit of the public. He noted that there are times that the City needs to regulate people's lives and all the people that are present today feel that this is a case where private property must be regulated. He stated that if the trees are going to be donated he felt that he would like to have them donated to him. Mr. Scholder stated that if his neighbor is going to put a driveway in and needs to remove a tree, then he should be able to give it to his neighbor rather than the City. He further stated that he does not see why the City has any more right PAGE FIFTEEN - SPECIAL CITY COUNCIL MINUTES - APRIL S, 1999 to the tree than a good neighbor or friend. He agreed with Councilman Schiffner and stated that the trees that the neighborhood is worried about are the historical trees. He questioned who really owns the trees. Mr. Johnson stated that the suggestion by Councilwoman Brinley or City Attorney Leibold does make a great deal of difference to the City. He stated that if the Council requires that the tree remain within the City and is exempt from the permitting process, how would the City know that the tree is being handled properly and will not solve the problem that currently e~sts. He concurred with the suggestion made by Councilwoman Brinley. He did not agree with the suggestion made by Councilman Schiffner. He stated that if the City is exempt from complying, then the City is prohibiting anyone else from selling the trees. Mr. Howard stated that there are three big problems: 1) a violation of civil rights; 2) selective law enforcement; and 3) preferential treatment. He read a letter from the City dated October 1, 1998, which stated that no trees are to be removed until the trees are proved to be on private property. He gave an overview of the requirements of the letter. He stressed the date on the letter and stated his objection to retroactive law. Lauren St.Vincent, 29444 Kalina, addressed the responsibility of ownership and the need to retain the beauty of the area. She urged all the people that own the property to consider their actions. Ms. Lapere stated that she is very interested in saving the trees, however she did not want to put a burden on the property owner who wants to sell a tree on the inside of their back yard. She stated that what she felt was being considered was the trees along the roadway. She stated that she felt that no one should have the right to tell a property owner that they cannot move a tree that is on the back or side of their property. She noted that however she is in favor of identifying the trees to know that the property owner had authorized the removal. She stressed that the whole purpose of the meeting is to preserve the trees along the roadway. Ms. Rupnow noted the inconsistency of the measurements used to determine what the right-of-way is. She stressed that even if the trees are on private property, but are in the setback they should be prohibited from removal. She further stressed that this should address only those trees. She requested that the setbacks be clearly defined. She stated that the City should be responsible for inspection to be sure PAGE SIXTEEN - SPECIAL CITY COUNCIL MINUTES - APRIL 8,1999 that the closure of the removal is done properly and that all of the debris is removed properly. Mr. Limebrook questioned the amount of fees. He stated that the City should make the amount affordable for permits and inspection since this is just to insure that the trees are not being stolen. Nita Van Heist stated that unless the trees have been declared historical monuments or they are some rare or endangered species, the trees are on private property. She further stated that the ordinance.is crossing into violations of various laws. She noted the related problems that can occur if the City goes in violation of the different laws and suggest that the City would be better off to deal only with the trees that belong to the City in public right-of-way. She stressed that the ordinance should not address the rights of the private property owner. Mr. Alongi stated that what is being heard from the people today is that they want to save the trees that are along the roadway and not the trees that are on private property. He questioned the action to include the setback areas and asked if the City will require that type of tree to be planted in the setback. He stated that the ordinance. is dysfunctional and indicated that the City should concentrate on the trees in the right-of-way only. Jessie Myres asked if there were monuments anywhere in the streets to define exactly where the property lines are. She noted the right of the City to control the right-of-way and what can and cannot be done. She noted that what concerns the people are the trees along the street and not the trees on private property. Merry Myres noted the location of the trees in question in the City. She stated that several of the trees have been removed and she does not want to see any more trees removed. She indicated that she is addressing the trees that line the street. Ms. Graves indicated that she is concerned about the palms on the parkway and not the palms that are on private property that might need to be removed. Councilman Schiffner clarified that the trees that are on City property can be protected, however what is being discussed are the trees on private property. PAGE SEVENTEEN - SPECIAL CITY COUNCIL MINUTES - APRIL 8,1999 Mayor Kelley stated that at the last meeting the palm trees were discussed, and she had promised to send letters to the absentee land owners in the neighborhood advising them of the sensitivity of this issue. She noted that the letter has been completed and will be mailed to the absentee landowners only in that area. She ga~e an overview of the contents of the letter, and she stated that she would support the ordinance to address trees in a certain setback. She noted that she does not feel that anyone wants to control trees that are in the back on private property, just the trees that in the front setback that lines the street. She further noted that part of the ordinance requires a report from a surveyor report to be turned in and stated that a comment was make regarding the inconsistency of the setbacks. City Manager Watenpaugh explained that depending on the different developments that have been done, not all of the property setbacks are the same. He stated that it might vary on the right-of-way by as much as 10 to 15 feet. Mayor Kelley stated that the purpose of the ordinance is to set up a legal yet organized way to handle not only the proper removal of the trees, but also the preservation of the trees. She indicated that the Council is walking a very narrow line since they are trying to answer the needs of the community and not step on the toes of the private property owners' rights. She stated that the trees are an asset to the community and the City is blessed with a large number of them, however the problem that is being experienced is due to the popularity of trees being used in landscaping and there is no way to know if this will be short term or long term. She indicated that this is the purpose of the ordinance since the City cannot do a moratorium. Mayor Kelley questioned the origin of the ordinance. City Attorney Leibold stated that they looked at ordinances from all over the State of California and they then constructed the ordinance to address the issues of the City of Lake Eisinore. Mayor Kelley asked that Council review the ordinance as follows: Page 2 Definitions: Adding the four additional palms. City Attorney Leibold indicated that Council might also want to add the Pygmy Palm. Council concurred. Councilman Pape stated that it was 5 foot on all the palms except the Mexican Fan Palm, which would be 25 feet, and over. Council concurred. This should only address the trees in the City right-of-way and Setbacks. PAGE EIGHTEEN - SPECIAL CITY COUNCIL MINUTES - APRIL 8, 1999 City Manager asked for clarification of the setbacks and right-of-way. Councilman Schiffner stated that his intent was for building setbacks. Community Development Director Brady stated that the building setbacks can vary, therefore what the Council should do is establish a setback from the property line at a specific number. He explained that the setbacks for building on certain lots, depending on what is going on the lot, could vary. Mayor Kelley asked for correct verbiage from the City Attomey. Councilman Metze stated that property line is immaterial, because when the property owner goes to build, the City will require them to dedicate so much of their property because of the street, but not until they build the house. He noted that there is a lot of property that has not been dedicated at this time. Councilman Schiffner stated that the intent of the trees along the street was to allow for right-of-way. City Manager Watenpaugh stated that staff could look at the Traffic Circulation Map and the Street Map and in those areas where the streets have not been dedicated, it can be determined what the street width will be when it is dedicated and use that as a guideline. Councilman Metze concurred that this would be best. City Manager Watenpaugh stressed that this would still be on private property until such time as a building is done and the area is dedicated. City Attorney Leibold clarified that no where in the ordinance is it a property owner being prohibited from removing trees. She indicated that the ordinance is regulating the removal through a permitting process. She noted that either the definition of significant palm can be narrowed, or if that creates a problem because of verification of whether it's a significant palm or not, for enforcement purposes or the neighbor, then the City needs to make sure what type of exemption is being addressed. She stated that if staff narrows the definition of significant palm, so that a permit is not required to remove palms in back yards, on developed property that is easily ascertainable, however on undeveloped property Council needs to define it in such a way that it is ascertainable without some other mechanism. She indicated that was the concern that was raised earlier. Mayor Kelley stated that if the ordinance is left as written it would be easier to enforce. Councilman Metze stated that it should have just some of the notarized requirements. Councilman Schiffner asked if the City had a Master Plan that tells the right-of-way width is going to be if the property is dedicated. Councilman Metze stated that the City is about to review that document and it could possibly change. City Attorney Leibold stated that the City must be able to verify that a palm is not a significant palm within the meaning of the ordinance. Mayar Kelley noted the following: Page Two: Significant Palm remains the same with the addition of the Pygmy Palm. PAGE NINETEEN - SPECIAL CITY COUNCIL MINUTES - APRIL 8,1999 "PERNIIT REQUIRED" remains the same. "PERMIT APPLICATION" -.010 - Add the word notarized and approved per City Form. 020 - delete .030 - Include map showing centerline and monuments establishing property line. Page Three: "PERMIT PROCEDLJRES: -.030 - Add cleaning up the palm fronds. .060 - move this to the sentence below .060.(City Attorney Leibold clarified the sentence following .080.) City Attorney Leibold explained that the CEQA finding relative to this ordinance is that the City is exempt from CEQA. She explained that the exemption that the City is relaying on presumes no-net loss or a nominal net loss caused by a damaged tree, diseased tree, or a tree removed in the course of a fire fighting activity. She stated that if the Council wished to allow the removal of trees without relocation or replacement, then the ordinance would have to be brought back for a first reading with a CEQA study. Council concurred that the sentence should be left in the ordinance. Mayor Kelley noted that the rest of the ordinance would go unchanged. City Attorney Leibold stated that the fees would be addzessed at the Resolution level for persons who wish to relocate or remove a tree during the building process. She noted that the permit fee would be waived provided the tree is relocated on the owners' property or removed and relocated within the City. The sale of the tree would be address by standard permit. Mayor Pro Tem Metze stated that he would like to see the 19 trees that have not yet been removed, to fall under this ordinance. Councilwoman Brinley concurred. City Attorney Leibold stated that staff would notify Council of the determination. PAGE TWENTY - SPECIAL CITY COUNCIL MINUTES - APRIL 8,1999 Councilman Schiffner asked if the City would be exempt from this ordinance. It was the consensus of Council that the City would have to go through the same process. City Attorney Leibold stated that she would work with the City Manager's Office and Community Services in preparing a resolution to establish the fee. Councilman Schiffner stated that this could further be established that this is a no-fee permit for the City. Councilman Pape asked if Council wished to require that a sign be posted seven days prior to removal. City Attorney Leibold stated that this should be placed under conditions. She stated that this would be assigned the .060. Councilman Pape asked if the City would be requiring a signed form from the property owner stating that the removal could ha~e a negative impact on the surrounding area and trees which is part of the permit process. Councilmen Metze and Schiffner stated that this would be addressed by the form that will be submitted to the Community Development Director. MOVED BY METZE, SECONDED BY SCHIFFNER TO APPROVE URGENCY ORDINANCE NO. 1044, WITH THE FOLLOWING AMENDMENTS: Section 5.78.020 - DEFINITIONS. "Significant Palms" list expanded to include: 4)Windmill Palm; 5) Mediterranean Fan Palm; 6) Senegal Date Palm; 7) Pindo Palm; 8) Pygmy Palm. "Significant Palms" list is further amended to place height restrictions of 25' on the Mexican Fan Palm and 5' on the remaining seven species. Section 5.78.040 - PERMIT APPLICATION Subsection .010 amended to read "the acknowledged written permission from the recorded land owner, notarized and approved per City Form and verified by the Director of Community Services:' Subsection .020 - deleted Subsection .030 add requirement for "map showing centerline and monuments establishing property line." Section 5.78.050 PERMIT PROCEDURES; CONDITIONS Existing subsection .060 is combined with existing subsection .080. PAGE TWENTY-ONE - SPECIAL CITY COUNCIL MINUTES - APRIL 8,1999 Subsection .060 is replaced by the requirement that a sign be posted seven days prior to removal of a tree. ORDINANCE N0.1044 i AN URGENCY ORDINANCE OF THE CITY OF LAKE ELSINORE, CALIFORNIA, ADDING CHAPTER 5.78 TO TITLE 5 OF THE LAKE ELSINORE MUNICIPAL CODE, ESTABLISHING A PROGRAM TO PROTECT AND PRESERVE THE CITY'S SIGNIFICANT PALM TREES. UPON THE FOLLOV`~ING ROLL CALL VOTE: AYES: COUNCILMEMBERS: BRINLEY, PAPE, METZE, SCHIFFNER, KELLEY NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: NONE ABSTAIN: COUNCILMEMBERS: NONE City Attorney Leibold stated that this is an Urgency Ordinance that ~ has passed by a unanimous vote and is effective immediately. She indicated that staff will follow forthright and prepare an application that serves to implement the Ordinance. She further stated that staff will prepare a resolution for Council consideration at the second Meeting in April, with respect to the fee schedule based on the reasonable cost of covering the service. She clarified that the fee has to relate to cost recovery and is not a revenue-raising fee. ADJOURNIVIENT MOVED BY BRINLEY, SECONDED BY SCHIFFNER AND CARRIED BY UNANIMOUS VOTE TO ADJOURN THE SPECIAL CITY COUNCIL MEETING AT 6:13 P.M. Respectfully Submitted, A ria L. B ing e ty Ci Clerk Vicki Kasad, City Clerk A'1'1EJ'1':