Tree-Killing In Laguna Beach

[Moxley Confidential] The nanny state is alive in Laguna, where officials slyly back a new 'right' to an ocean view for the well-connected who want trees killed

The majestic trees surrounding one 10th Avenue oceanview Laguna Beach home perched above Pacific Coast Highway were planted the same year Elizabeth Taylor, Edward Kennedy and Johnny Cash were born—in the months before Adolf Hitler ruled Germany, Japan occupied Shanghai and Franklin D. Roosevelt toppled President Herbert Hoover. At 80 years old, the trees have outlived Taylor, Kennedy, Cash, the Cold War and the New Deal, and on a recent afternoon, they showed no outward signs of looming natural death. But these trees have startlingly selfish and relentless enemies, including an Orange County Register reporter, determined to kill them.

It's certainly not breaking news that Laguna Beach residents often transform their otherwise-tranquil Southern California coastal paradise into a battlefield over the nation's latest, most elitist entitlement claim: the "right" to a Pacific Ocean view. The decades-old Trees vs. Views War has even caused bona fide combat casualties. Over the years, more than a few residents have snuck onto a neighbor's property under cloak of darkness to poison trees or saw off branches.

Regulating conduct in this highly emotional conflict isn't easy. But the politicians and bureaucrats who run Laguna Beach have quietly decided to adopt a newfound right to a view and declared that it trumps all other considerations. The move—done on the sly because neither federal nor state law recognizes such a right—converted this visually gorgeous village of 23,000 residents into an ugly, Orwellian nanny state.

Pahnos and Stephens: Leave our trees alone!
Kenneth M. Ruggiano
Pahnos and Stephens: Leave our trees alone!

Details

There are a few factual scenarios you would think everyone could agree on in this war. For example, it would be wrong for someone to plant trees that wreck a neighbor's existing view—which obviously diminishes property values as well as impacts aesthetics. But what if a new neighbor moves in, complains that trees planted on your property decades earlier are partially blocking his view, and demands you chop them down or shape them to suit his desires?

For Laguna Beach residents David Pahnos and Barry Stephens, a retired couple, the last scenario isn't fictional, but rather a very real nightmare. City officials have ordered them to kill healthy, 80-year-old trees on their property so that a well-connected couple that bought a home behind theirs can enjoy better ocean views. Pahnos, a former robotics engineer with ties to NASA, and Stephens, a former public-school teacher, have refused. They aren't being unreasonable, they say. Sure, they love the shade, but the trees serve an undeniable public-safety purpose.

Because many 10th Avenue homes were built with shallow anchoring and on a watershed that hurls 130,000 gallons of water per minute down the hillside during storms, the trees' roots not only stabilize the public road, protecting it from collapsing, but also keep the cottage owned by Pahnos and Stephens from crashing into the house beneath theirs and causing an avalanche of homes all the way to PCH.

Wayne E. Phelps, a Dana Point mortgage broker, and his wife, Erika Ritchie Phelps, an Orange County Register reporter who used to cover Laguna Beach and continues to enjoy personal relationships with a long list of city bureaucrats, don't care about the consequences. Starting in July 2010, they hired Steve Kawaratani, a well-connected local lobbyist, and began filing "Hedge Height Claims" against their neighbors. Their goal was entirely selfish and misguided. By forcing Pahnos and Stephens to chop down trees, the property the Phelpses bought in 2004 would obtain what it hadn't had since 1932: nearly unobstructed ocean views.

There would, of course, be two immediate consequences. First, the Phelpses would reap a massive financial windfall because the property would instantly leap in value. Meanwhile, the loss of the tree canopy would destroy the charm and value of Pahnos and Stephens' home. And here's where the senselessness comes in: These trees and roots also help to stabilize the Phelpses' home, keeping their property from sliding down the hill toward the ocean during a significant rainstorm.

"Without the roots of these trees, all these houses on 10th Avenue could come crashing down on one another if there were a landslide," said Pahnos, who noted that the neighborhood is a historic landslide site. "It would be a disaster for everyone."

At first, city bureaucrats repeatedly visited the neighborhood and sided against the Phelpses, who eventually got the matter before the city's Design and Review Board (DRB), for which lobbyist Kawaratani once ran as chairman. The DRB is charged with approving a homeowner's request for new construction or the alteration of existing property. Pahnos and Stephens weren't seeking any permits. Nevertheless, the DRB decided to treat the Phelpses' tree complaint as though it were a permit request to alter property they don't own. At a public hearing, the board gave the Phelpses and Kawaratani special seats and a microphone so they could explain how they've been cheated. Pahnos politely asked to address the board for the same length as the Phelpses had been given, but he was told to shut up and sit down in the back of the room with members of the general public.

In the aftermath and despite vocal community support to keep the trees, the DRB upheld the complaints. So did the City Council, whose members puzzlingly championed the right of the Phelpses to have their ocean views "restored." In the middle of the case, city bureaucrats amended the Hedge Height rules to "ensure fairness." In reality, the new regulations state that in deciding tree and view disputes, officials cannot consider any impact removal of trees will have on a tree owner's property—including potential landslides, public safety and loss of equity.

"Value to the owner of the hedge, such as privacy, shade, temperature reduction or other environmental benefits, are not considered in the [new] Hedge Height Claim process," wrote city planner Carolyn Martin in a February 2011 memorandum that also aimed to strengthen the government's ability to punish residents who don't obey tree-killing orders.

Believing they were being wronged, Pahnos and Stephens refused to destroy their trees. In response, the city issued $1,000-per-day citation fines and filed formal courthouse charges that seek to imprison both of them for six months.

"They want to put us in jail," said an incredulous Stephens. "Can you imagine putting us in jail over trees and a view?"

In January, Superior Court Judge Marjorie Laird Carter dismissed the misdemeanor charges and ridiculed the city tactics, saying, "I would think most homeowners . . . would throw up their hands and say, 'What the heck are we supposed to do?'"

Three days later, the city sent Pahnos and Stephens another threatening letter. Using Newport Beach attorney Charles Mollis, the couple then filed a motion seeking a court order prohibiting future harassment. The city's response? Incredibly, officials refiled the already-dismissed criminal charges in an attempt to shop for a favorable verdict with a different judge, former prosecutor Andre Manssourian. Tired of the games that have resulted in legal bills and personal turmoil, the couple this month filed a lawsuit for damages against the city.

"I don't blame the Phelpses," said Pahnos. "They want to increase the value of their home by getting a better view than they paid for when they bought their house. I can understand that, but what I don't understand is why the city of Laguna Beach hasn't been fair. We'd just like to enjoy our retirement in peace."

This column appeared in print as "A View to a Killing: The nanny state is alive in Laguna Beach, where officials slyly back a new 'right' to an ocean view for the well-connected who want trees killed."

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