Appeals Hearing Board Meeting

APPEALS HEARING BOARD MEETING MINUTES CITY OF MONTEREY Tuesday, February 9, 2021 2:00 PM MONTEREY, CALIFORNIA Board members Present: Hawkins and Millich Absent: Glenzer and Yaqub (Alternate) Board Staff Assistant City Attorney Karin Salameh, Deputy City Attorney Ryan Donlon Present: and Clerk of the Board Alicia Salas Other Staff Code Compliance Coordinator William Moritz and City Forester Justin Present: Prouty CALL TO ORDER Chair Hawkins called the meeting to order at 2:13 pm. PUBLIC COMMENTS None. PUBLIC HEARING 1. Adopt Administrative Order for Failure to Comply with the Compliance Order Issued August 21, 2020 for Volitions of Monterey City Code Section 22-38.2; Richard & Gwendlyn Peckham - 2298 Prescott Ave., APN: 001-211-008-000 Code Compliance Coordinator William Moritz gave his presentation regarding 2298 Prescott Avenue. Board member Millich asked Mr. Moritz what still needs to be done on the property. Mr. Moritz said it is primarily the vehicles - the motorhome, the cars, the trailers and the van that are stored improperly. He said there are requirements within the City of Monterey with respect to where a vehicle can be stored. Mr. Mortiz said it can only be a few places, such as on a driveway apron, in front of a garage or on hardscapes. He said these vehicles are all within the yard set-back and need to be removed. He said there are safety concerns as well as because the vehicles have fuel in them. Mr. Mortiz said all the refuse has been abated with the exception of the refuse under the vehicles. Board member Millich asked Mr. Moritz what was the lien holder responsible for removing? Mr. Moritz said there is nothing left for them to remove, only to secure the two car garage, like bu putting plywood on it to ensure that no one can enter the area. Board member Millich asked Mr. Mortiz if the lien holder is responsible for removing the cars. Mr. Mortiz said they are not since the vehicles are private property, they do not have the authority to remove them. Board member Millich asked that Mr. Moritz give the Board a breakdown of the charges the City is looking to recover. Assistant City Attorney Karin Salameh told Board member Millich that the breakdown is in the Agenda Report as Attachment 4. She said the Administrative costs are in the amount of Appeals Hearing Board February 9, 2021 Minutes $2,290.97. She also said the penalties for failure to bring the property into compliance after the Compliance Order are listed as $10.00 per day, totally $360 for the period between the December 4 Compliance letter and todays hearing. Ms. Salameh said penalties for failure to remove the vehicles in the allotted time given by the Board will be $50.00 a day, up to $100,000.00. She went on to say the justification for the Administrative Costs are in the Agenda report as Attachment 5. Ms. Salameh said the Proposed Order still reflects some of the work that has already taken place by the lien holder. She said the Board will want to revise the Proposed Order to eliminate some of the code sections since they are no longer applicable in light of the work the lien holder has performed. Board member Millich asked Mr. Mortiz if he had been in contact with Stephanie Boughton, the Peckham’s daughter. Mr. Mortiz said he spoke to her husband in August of 2020 and has been attempting to speak with Ms. Boughton since then. He said his first communication with her was the morning of the hearing. Mr. Mortiz said Ms. Boughton was very distraught over the situation and she said she is feeling guilty over the state of the property. He said although she feels that way she is unable to make any progress with the property. Board member Millich asked Mr. Moritz who owns the vehicles on the property. Mr. Mortiz said they are registered to Gwendlyn and Richard Peckham with the exception of the van which is registered in her son’s name, who is deceased. Public Comments None. Board Member Discussion Assistant City Attorney Karin Salameh stated for the record, that notice was provided by the Department, both posted on the property and sent to the last known address on the Accessor’s Roll as required by the City Code and the property owner or agent for the owner has not appeared at the hearing this afternoon. Mr. Mortiz said for the record, when he did speak to Ms. Boughton he informed her of the Appeals Hearing Board meeting today and offered her the opportunity to join but she was unable to due to her internet and technology situation. He said he would keep her apprised of the situation and the Board’s decision. Board member Millich asked how the Board’s order would be served. Mr. Mortiz said he has Ms. Boughton’s address where the mother is living and it is a viable address. Chair Hawkins said he appreciates the City trying hard in a difficult situation. He made the motion to assess the fees and penalties and continue to press the home owners to get the property cleaned up. Board member Millich clairified that would include the administrative costs, the fees and to get it cleaned up within 30 days. He also added that the $10.00 a day would increase to $50.00 a day if not compiled with within 30 days. Chair Hawkins agreed with Board member Millich. Board member Millich seconds the motion. 2  Appeals Hearing Board February 9, 2021 Minutes Assistant City Attorney Salameh suggested that the Board look at the Proposed Order and revise it as needed. Ms. Salameh said the Proposed Order had seven issues that had be in violation of the City Code. She said she believes of the seven issues only one remains and that’s the vehicles. Mr. Mortiz agreed with Ms. Salameh and restated the only remaining issue is the vehicles. Deputy City Attorney Ryan Donlon asked if securing the garage was also an issue. Mr. Moritz said he is confident working with the mortgage company that they will resolve that issue by this week. He said it is clean and no longer a nuisance but it should still be secured by them. Chair Hawkins amended his motion to include section m (The storage or keeping out of doors of abandoned, wrecked, dismantled, or inoperative vehicles or parts thereof on the property commonly known as 2298 Prescott Avenue, Monterey, California) and subsection 2 (On or before March 9, 2021, the Responsible Party shall pay Administrative Costs to the City of Monterey in the amount of $2,290.97) of the Proposed Order. Board member Millich seconds Chair Hawkins amended motion. Assistant City Salameh clarifies that the motion should also include imposing costs and administrative penalties laid out in the Proposed Order. Both Chair Hawkins and Board member Millich agrees with Ms. Salameh. The motion carried by the following vote, which was conducted by roll call: AYES: 2 COMMISSIONERS: Millich and Hawkins NOES: 0 COMMISSIONERS: None ABSENT: 1 COMMISSIONERS: Glenzer ABSTAIN: 0 COMMISSIONERS: None RECUSED: 0 COMMISSIONERS: None 2. Motion for Reconsideration and to Reopen the Hearing on the Appeal by Chinyere Ogbonna of the City Forester's Decision to Deny Application for Removal of One California Pepper Tree at 514 Prescott Avenue, Monterey, APN: 001-083-011-000 (Not a CEQA Project) Chair Hawkins gave the four standards for Tree Removal permit appeal. He said the four items for the decision are: 1.) the visual prominence and value of the tree on the site or in the community; 2.) the tree’s contribution to the aesthetic beauty of the area and the effect its removal will have neighboring property values; 3.) evidence or testimony presented by the applicant that demonstrates the extent of concern or anxiety caused by the tree; and 4.) acceptance of mitigation measures which are the number and size of the replacement trees. Assistant City Attorney Salameh said that before the hearing is reopened, there needs to be Board member deliberation and discussion on the Chairs Motion for Reconsideration. She said we need to reopen the hearing based on the fact that the four standards for the Appeals Hearing Board review of tree decisions, which are different than the standards the Foresters decision on a permit, were not adequately considered in the prior meeting. Board member Millich expressed his confusion as to why the hearing was reopened. He asked Ms. Salameh if the Forester took into consideration the four points in denying the permit. 3  Appeals Hearing Board February 9, 2021 Minutes Ms. Salameh said under the City Code the Forester is not permitted to take into consideration these four factors. She said the Forester can only consider the tree health, safety and mitigation measures. She went on to say that when it comes before the Board, in addition to the standards the Forester considers, the Board is also required to consider aesthetics, the visual prominence of the tree, the anxiety of the appellant and mitigation factors. Ms. Salameh said that after the prior meeting there was some concern that the four additional factors for Board consideration were not fully addressed in the Board’s decision. Public Comments Appellant Chinyere Ogbonna said she would like the opportunity to give her presentation as she said she was not aware that she could have done that in the last hearing. Board Member Discussion Chair Hawkins made a motion for reconsideration and to reopen the hearing. Board member Millich seconds the motion. The motion carried by the following vote, which was conducted by roll call: AYES: 2 COMMISSIONERS: Hawkins and Millich NOES: 0 COMMISSIONERS: None ABSENT: 1 COMMISSIONERS: Glenzer ABSTAIN: 0 COMMISSIONERS: None. RECUSED: 0 COMMISSIONERS: None Deputy City Attorney Ryan Donlon gave a presentation regarding the process of the appeal and the Forester’s Decision. City Forester Justin Prouty gave his presentation regarding his decision to deny the Tree Removal permit. Applicant Chinyere Ogbonna gave her presentation as to why the denial of the Tree Removal permit should be overturned. Ms. Ogbonna said in the previous hearing it was stated that the area does not have a lot of trees, she said there are number of trees across the street from her at the school. She presented photos and pointed out other trees in the area. Ms. Ogbonna said that one of the issues that prompted her to submit a Tree Removal application was that the previous tenant said there were issues with the toilet not flushing. Ms. Ogbonna said she consulted several arborists to find out if it was a good idea to submit an application to remove the tree. She said they all thought the tree was located in the wrong place for the size and shape of the lot and they would always point out that the sewer clear out and line are located directly under the tree and that it could cause potential issues in the future. She went on to say that she would be more than happy to replant trees in a location away from the sewer line and where the trees can grow in a sustainable way. Ms. Ogbonna said the tree is not a native tree but it is protected by a City Ordinance. She said the issue that she is concerned about cannot be addressed by pruning the tree because the tree 4  Appeals Hearing Board February 9, 2021 Minutes is located directly over the sewer line. She said she was aware that tree roots were infiltrating the line according to a plumber. She explained that the plumbers were not able to salvage the line, instead it needed a total replacement, which included digging up the street as well as traffic control. Ms. Ogbonna said she had to work with two different plumbers to resolve the issue. She said they were surprised that she did not have more problems with the toilet as there was extensive tree root infiltration. She went on to say that the roots caused multiple breaks and resulted in needing to replace the entire line. Ms. Ogbonna said her primary concern is the location of the tree. She said she would like to protect her investment and prolong the longevity of the new sewer line. Ms. Ogbonna said she did research on pepper trees and found that they are notorious for causing issues with sewer lines as they have very aggressive roots. Ms. Ogbonna asked that the Board keep in mind when making their decision the size and orientation of her home and front yard as well as the fact that she does not have a backyard. She said she would be able to enjoy gardening in her front yard if the tree was removed since the front yard is South facing. Safety is a concern for Ms. Ogbonna as well. She and her neighbor feel like the tree is a hazard when backing onto Prescott Ave. She said it is a very active street with cars, dog-walkers, joggers, pedestrians, etc, and it would great to not have any additional factors to worry about when backing out of the driveway. Another factor that Ms. Ogbonna wanted the Board to consider before making their decision is aesthetics. She said removing the tree would not have a negative effect on the neighborhood but rather it would provide an opportunity to improve the overall aesthetics of the block. Public Comments Carolyn Mitchell, the neighbor of Ms. Ogbonna, she said they share a fence and the tree in question which hangs into her yard. Ms. Mitchell said this has been an impediment to her view over the years due to the hanging foliage. Ms. Mitchell said she supports Ms. Ogbonna’s application and made a point to tell the Board that she is in the middle of construction on her property and plans to plant an Olive tree, so that would also add to the tree landscape of the neighborhood as well. Board member Millich asked Ms. Mitchell if there is a fence between the two properties. Ms. Mitchell said there is a fence; it’s about 5 – 6 feet tall. Board member Millich asked Ms. Mitchell if the fence inferferes with her view of the street. She said she has a larger vehicle and has to pull past the fence with part of her vehicle in the street to see, but it’s doable. She said the view is further blocked after she passes the fence due to the low hanging foliage of the pepper tree which hangs over the sidewalk. Ms. Mitchell said there is a long history of that tree not being maintained. Ms. Ogbonna said that she and Ms. Mitchell are working together to come up with a solution for the fence. She said they would like to either remove the fence or lower it considerably to help with the line of sight. Board Member Discussion Chair Hawkins said he feels the issue with the tree roots and the sewer line is exaggerated because he had the same issue at his house. He said he replaced the line in the same way but hasn’t had any issue since then. He said he believes that the sewer line will probably be ok in the future with the work that has been done on it. 5  Appeals Hearing Board February 9, 2021 Minutes Board member Millich said he agrees with Chair Hawkins. He said in his past dealings as a City Attorney in Simi Valley, representing the Public Works Department, most often the sewer line will break and the tree roots are attracted to the water in the line. He said it’s not usually the tree roots that break the line. He went on to say that he doesn’t believe the sewer line will have any future issues since there is a liner around it. Board member Millich said he is torn on this appeal. He said the tree takes up a lot of the space on the lot and probably should not have been planted there but it’s there now. He went on to say do we allow the existence of the tree to take away from the homeowner’s enjoyment of her property. Board member Millich said he tends to side with the homeowner on this issue. Board member Millich said if Chair Hawkins is thinking he would go the opposite direction then we do not have a motion that will be seconded. Assistant City Attorney Salameh said we could continue the hearing until when Board member Glenzer can be present. Deputy City Attorney Ryan Donlon objected, on behalf of the department, to the continuance as the hearing was duly noticed and the department is ready to proceed. Appellant Chinyere Ogbonna suggested that Board member Glenzer watch the recorded meeting so as to not to have to redo the meeting over at the continued hearing. Assistant City Attorney Salameh said that could work if both parties agree and stipulate to that fact. Both the Board and the appellant agree to stipulate to have Board member Glenzer watch the meeting in order to vote at the next meeting. Deputy City Attorney Donlon said the Forester has concerns about the use of City staff time and resources; however, he would be agreeable to continuing the hearing provided that the absent Board member could view the video prior to the hearing so as not to have both parties give their entire presentation again. He said if those are the terms the City Forester would be willing to do that. Board member Millch made a motion to continue the hearing to Monday, February 22, 2021 at 11:00 am. Chair Hawkins second the motion. The motion carried by the following vote, which was conducted by roll call: AYES: 2 COMMISSIONERS: Millich and Hawkins NOES: 0 COMMISSIONERS: None ABSENT: 1 COMMISSIONERS: Glenzer ABSTAIN: 0 COMMISSIONERS: None. RECUSED: 0 COMMISSIONERS: None BOARD MEMBER COMMENTS None. 6  Appeals Hearing Board February 9, 2021 Minutes ADJOURNMENT The meeting was adjourned at 4:09 pm Respectfully Submitted, Approved, Alicia Salas Daryl Hawkins Recording Secretary Chair of the Board 7