A Rancho Palos Verdes homeowner who challenged the city's "view protection ordinance" has lost his case at the Second District Court of Appeal. The court rejected arguments that the ordinance — which allows the city to order the pruning of trees that block ocean views — is an impermissible use of the city's police power and a taking. The court also dismissed arguments that the city's application of the ordinance violated due process rights. In 1989, Rancho Palos Verdes voters approved Measure M, a city-sponsored ballot measure that restricts the height of buildings and foliage. Under the ordinance, a resident of this coastal town whose view is impaired can apply for a "view restoration permit." If approved, the permit allows the city to order foliage trimmed or removed at the cost of the applicant. In February 1997, Norbert Keilbach filed a view restoration permit application to compel his neighbor, Jon Echevarrieta, to trim eight trees that stood 20 to 60 feet tall. After more than a year of proceedings before the city's View Restoration Commission and the City Council, the council approved the view restoration permit. It required Echevarrieta to trim his trees substantially and required Keilbach to plant a barrier of 20 to 25 low-growing shrubs to mitigate Echevarrieta's privacy concerns. In June 1998, Echevarrieta filed a petition for writ of mandate and a complaint for declaratory relief, taking, and spot zoning. Los Angeles County Superior Court Judge Jean Matusinka ruled for the city. On March 3, 2000, the court issued a warrant authorizing entry onto Echevarrieta's property for the purpose of "trimming, culling and lacing trees and foliage." Echevarrieta obtained a 90-day stay of execution, but the court of appeal declined to extend the stay. On appeal, Echevarrieta argued that the ordinance does not state a valid purpose and — as applied — impermissibly expands the city's police power. The Second District, Division Four, disagreed and upheld the trial court. Writing for the unanimous three-judge panel, Justice Gary Hastings quoted extensively from the ordinance, which states in part, "The hillsides provide potential vista points and view lots. The City's General Plan recognizes these natural resources and calls for their protection. The public health, safety and welfare of the City require prevention of needless destruction and impairment of these limited vista points and view lots." Wrote Hastings, "Enacting the ordinance for these purposes is clearly a legitimate exercise of the city's traditional police power." Both Hastings and the trial court cited Kucera v. Lizza, (1997) 59 Cal.App.4th 1141 (see CP&DR Legal Digest, January 1998), in which an appellate court upheld a similar ordinance in the City of Tiburon. As for the takings argument, the court found that the ordinance did not deny all economically beneficial or productive use of Echevarrieta's property — the standard set in Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003. "Appellant cites the damages to his property as his loss of privacy and ‘utility saving cooling shade,'" Hastings wrote. "Appellant cannot show he has a vested right to foliage of a certain height or to a fixed amount of utility charges. …While appellant cherishes his park-like privacy, the regulation of tree heights throughout the city may indirectly increase the property's value, as the city becomes known for one which has scenic vistas." The court also found that the warrant authorizing entry onto Echevarrieta's property was not a "physical invasion" barred by the Fifth Amendment, as the homeowner had argued. Echevarrieta's refusal to comply with the City Council's decision compelled such activity, the court held. Regarding due process, the court rejected the argument that the city retroactively applied the ordinance, which amounted to an arbitrary action. "There is no automatic retroactive reach of the ordinance. Homeowners are allowed to keep foliage at the height it existed on the effective date of the Ordinance. It is only when another homeowner applies for a view restoration permit that the inquiry begins whether the foliage must be trimmed to a lower height," Hastings wrote. The court also rejected the argument that the ordinance is deceptive and uncertain. The Case: Jon Echevarrieta v. City of Rancho Palos Verdes, No. B138366, 01 C.D.O.S. 696, 2001 Daily Journal, D.A.R. 863, filed January 3, 2001, ordered published January 18, 2001. The Lawyers: For Echevarrieta: Robert Hampton Rogers, Sullivan, Workman & Dee, (213) 624-5544. For the city: Carol Lynch, Richards, Watson & Gershon, (213) 626-8484.