Agenda, closed session, first session — Del Mar City Council, February 22, 2022

Del Mar City Council Special Meeting Agenda
Del Mar City Hall – Via Teleconference Only
1050 Camino del Mar, Del Mar, California
February 22, 2022 City Council Special Meeting

INFORMATION RECEIVED

AFTER THE COUNCIL AGENDA

WAS DISTRIBUTED
(“Red Dots”)
Progress is being made but the fight is
not over yet…..
2-22-2022 Del Mar City Council Meeting
Karen Lare - Del Mar CA
1 February 22, 2022 Item III - A,B Closed Session
Thank you City Council members
For standing up for the city residents and visitors in the face of NCTD’s bulling tactics to get you to agree to a fencing deal that is bad for the city.

While I don’t know the specifics of the negotiations or the current position, I do know that it is critical that all of you remain steadfast in objecting to fencing except in those areas where accidents have actually happened.

It is also upon you to ensure that you are not taking on liability for NCTDs operation of the railroad and potential bluff collapse due to the operation of the railroad along the bluff.
.
2 2 February 22, 2022 Item III - A,B Closed Session
No Fence on Upper Bluff
I urge you to continue to push to have no fence along the upper bluff.

Without fencing design plans and a competent geological study of the fencing area, how can you agree to install a fence that will cause increased bluff erosion?
While I appreciate your hard work to protect the fragile Del Mar Bluffs and save the beach access you cannot back down now.

The laws for the State of California were put there for a reason and no entity nor person should be allowed to fragrantly disregard them. Especially when doing so could have such dire irreversible consequences. 3 3 February 22, 2022 Item III - A,B Closed Session
Don’t forget that NCTD must follow the laws
NCTD must follow the law - hold them accountable to the laws that have served to support our environment and coastal access for years and will for decades to come:
• NCTD’s fence is dangerous….there are safer alternates like legal crossings, flashing lights, etc.
• NCTD’s dangerous fence will undermine the bluffs by drilling 1,500 postholes (3 ft deep x 1 ft wide) and adding 660,000 lbs. of weight (cement and metal) to crumbling sandstone bluffs
• NCTD’s fence violates the permit they received for the Bluff Stabilization Project #4 which required a coastal access study as well as additional improvements • NCTD’s fence violates CEQA
• NCTD’s fence violates terms of State grant funding which requires them to follow California law including CEQA and the California Coastal Act
- NCTD was created by state legislature and as a state chartered entity it must follow California laws including the Coastal Act
4 4 February 22, 2022 Item III - A,B Closed Session
Improve safety at the legal 15th street crossing
A close review of NCTDs fencing plan and the map of accidents and suicides shows NCTD is not focusing on the most dangerous areas rather they are focusing on punishing the City of Del Mar, it’s residents and it’s visitors who come from all over the world to see its beauty and vistas.

Direct NCTD to erect fencing and improvements where it is needed only.

Del Mar should not be taking on any liability for the running of the railroad. They can afford to take it on we cannot afford to take it on nor should we be forced to do so.
5 5 February 22, 2022 Item III - A,B Closed Session
Half of the Near Misses in Del Mar (3) happened at the legal crossing where the railroad crosses Coast Blvd to get to the bluff. 6 6 February 22, 2022 Item III - A,B Closed Session
Not a single warning sign that this is a live Rail
Road, despite a dangerous, blind curve where
95% of all accidents on the bluff happens,
between Coast Blvd and 13th Street.

View from 13th St going north towards
Coast Blvd, blindly going into the curve
View from Coast Blvd going South
toward 13th st, blindly into the curve
Going South from the Traffic-crossing at
Coast Blvd.
7 7 February 22, 2022 Item III - A,B Closed Session
Stay strong on your position …..
• Just because they are giving in on some of their demands does not mean you need to give in.
• Continue the fight to save one of the last, natural coastal bluffs in the San Diego region.
• Help us save this bluff and its vistas for future generations. • Help save lives by focusing fencing and other safety measures like signage enhancements at the legal crossing where they are needed not on an upper bluff where there are no train tracks.
• Ask NCTD to focus instead on getting the tracks off of the bluffs. That is where they should spend their time and money.
8 8 February 22, 2022 Item III - A,B Closed Session
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1 Melinda Gould
From: Weiss, Shirli <[email protected]>
Sent: Tuesday, February 22, 2022 11:36 AM
To: City Clerk Mail Box
Cc: Dwight Worden; Tracy Martinez; David Druker-Private; Dan Quirk; Terry Gaasterland; Ashley Jones; Bill Pate
Subject: Public Comment: 2/22/22 City Council Meeting
Follow Up Flag: Follow up
Flag Status: Completed
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Dear Mayor and Members of the City Council:

My name is Shirli Weiss. I am a long-time resident of Del Mar and have practiced law in San Diego for over 40 years.

I have closely followed developments related to NCTD’s proposed fencing of Del Mar’s Bluffs and its lawsuit against the Coastal Commission and Del Mar. I and Laura Schaefer have submitted briefs to the STB in support of the defendants.

I attended the January 20, 2022 general meeting of the NCTD where the majority of its board voted to move ahead with its “recommended fencing” of Del Mar and its contract to Exbon if Del Mar does not sign NCTD’s License Agreement by February 28.

I very much appreciate the City Council’s and Ms. Jones and the City’s legal counsel’s efforts to continue to negotiate the License Agreement.

Following the NCTD January 20 meeting, I made a public records request to the NCTD and obtained the draft License Agreement that existed at that time and on which the NCTD based its vote. As you know, Exhibit A, which was to define the License Area is a critical material term to the License Agreement as is an accurate and exact description the location on the bluff where the Fencing Improvements will be erected.

To my surprise, the draft License Agreement produced by NCTD in response to my public records request contained a blank Exhibit A, which means it did not define the License Area and it did not describe where the fencing would be placed on the Bluff, two critical terms.

I thought there must be some mistake so I followed up with and email to NCTD and requested the completed Exhibit A. I received no document and have to conclude that NCTD voted on and is expecting Del Mar to sign an agreement with key terms missing.

NCTD has had 14 months to provide Del Mar with key terms: the precise written description of the License Area and the location and specifics of the fence improvements on the varying topography of the Upper Bluff, and has failed or refused to do so. Without key terms, the City Council cannot meet with the public on the proposed agreement or vote on it. It is time for Del Mar to take the laboring oar and provide NCTD with the missing terms to which it would agree.

The definition of the License Area and the specific location of the fence on different topographical segments of the bluff are related.
1 February 22, 2022 Item III-B Closed Session
2 The purpose of the License Agreement, as I understand it, from Del Mar’s side, is to preserve the Upper Bluff for continued use by the public who has been using it for over 100 years.

If Del Mar ends up with a fence and no walking area or a sliver of walking area, Del Mar will not be getting anything for its extensive waiver of rights in the License Agreement.

We are left to surmise why NCTD has not provided specifics on the location of the fence, a most reasonable “ask” by Del Mar. My guess is NCTD simply planned for its contractor to make decisions in the field on where to put the fence. Then NCTD would ask Del Mar to “accept” a fence already built and which can’t be removed without more damage. If the City goes along with this, it essentially gives NCTD a “blank check” on a key term pivotal to Del Mar’s reason for entering into the agreement. We will end up with a fence next to the drainage culvert.

On the specifics of fencing, the inconvenient fact is that there is not sufficient room for both a fence south of Sea Cliff in front of Del Mar Woods and a two way path for walkers. Moving east to west, the trail has the drainage culvert of about 4 ft. wide that NCTD installed on the east side, (maintained at DMW’s expense), then only about a 4ft wide path and then about 2 feet of rather important vegetation that should not be disturbed. Where exactly does NCTD plan to place a 4ft. fence with drilled holes and at the same time maintain the trail for walking? Del Mar should specify that no fence (or a light 2ft high wood split rail fence on the vegetation) be placed south of Sea View, or Del Mar will have no trail and no consideration for our agreement.

North of Sea Cliff is wider and provides more options. Del Mar should specify the location of the fence it can live with in that segment the Exhibit A.

Del Mar should be very clear with the Coastal Commission that it cannot sign a License Agreement with the key terms missing (the Commission will surely understand), and then it should supply those proposed key terms: the precise description of the License Area, the specific location of the fencing (measured in inches or feet from the west side in each segment of the upper bluff) and the need to maintain a trail.

Thank you.

Respectfully submissted,
Shirli Weiss
551 Stratford Court
Shirli Fabbri Weiss
Retired Partner
M +1 858 449 4850
[email protected]
DLA Piper LLP (US)
dlapiper.com
2 February 22, 2022 Item III-B Closed Session
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3 February 22, 2022 Item III-B Closed Session
1 Melinda Gould
From: Al Tarkington <[email protected]>
Sent: Tuesday, February 22, 2022 1:31 PM
To: City Clerk Mail Box
Subject: Red Dot, City Council Closed Session
Follow Up Flag: Follow up
Flag Status: Flagged
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February 22, 2022
Dear Councilmembers,
I urge you to stand firm in your negotiations with NCTD.

NCTD claims to have sole ownership and sole control over the rail right of way running through Del Mar.

On the other hand, NCTD wants Del Mar to assume some of its risk and to take on some financial responsibility.

People who use the paths along the tracks for the most part are visitors to Del Mar. To ask Del Mar to pay for and maintain any portion of a fence that primarily benefits non-residents does not make sense.

Likewise, to ask Del Mar to accept some of NCTD’s risks makes no sense whatsoever.

When you think about what NCTD is asking of Del Mar, it is outrageous.

Any sort of a fence on the upper bluff right of way makes no sense, and it will be a complete waste of money by NCTD. NCTD has shown they have more money to waste than Del Mar.

Any deal Del Mar makes with NCTD on the upper bluffs in their Phase 1 will set the tone for NCTD’s subsequent work.

If ultimately NCTD succeeds in bypassing the California Coastal Commission and builds a 6-foot fence along the entire bluff, at least Del Mar could hold its head up high.

Respectfully,
Al Tarkington
100 11th Street. Del Mar
1 February 22, 2022 Item III-B Closed Session
1 From: [email protected]
Sent: Monday, February 21, 2022 12:28 PM
To: City Clerk Mail Box
Subject: Red Dot Letter - Agenda Item D - Special City Council Closed Session Meeting 22 Feb 2022
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Dear Del Mar City Council:

A small committee of Crest Canyon neighbors had a Zoom meeting with Mayor Terry Gaasterland and City Council Member Dave Druker on Sunday, April 18th, 2021. In addition to Terry and Dave, the neighborhood attendees were Beth Westburg, Ann and Gil Williamson, Majid Kharrati, Wade Walker and me. We’ve volunteered to help coordinate the effort to grant a road easement to the city and ask the city to maintain San Dieguito Drive going forward.

The essence of our conversation boiled down to this question: how do we persuade the city of Del Mar that San Dieguito Drive is functioning as a public road so they will take on the expense of maintaining it? Attendees reminded our elected representatives of the many ways in which the road is used by and for the public:
 Public parking for Crest Canyon hikers and birdwatchers and occasionally fairgrounds event attendees.  Emergency access to Crest Canyon in case of fire or flood  City access for maintenance of the public street above us (Oribia Road)  Emergency evacuation for the residents of Oribia Road and San Dieguito Drive  Installation of fire hydrants in the road easement by the city a few years ago  Placement of street signs in the road easement when public street and utility repairs are underway Terry asked us to create a list of reasons why the road is used for (1) public purposes or (2) private purposes. I volunteered to take on this task. I polled the residents of San Dieguito Drive and Oribia Road. In addition to the points listed above I also received additional input and photographs. The photos are here: https://photos.app.goo.gl/BqXjjhaC9mPfovNK9
Majid Kharrati had this statement:
“I have attached a photo as an example of how a public agency (it's contractor) is using the fire hydrant on Oribia as a water source for plant establishment of the Crest Canyon project. The city staff must come up and read the meter monthly and charge the city contractor.

I think the following are some of the justifications for San Dieguito being a public roadway as it is the only way to access the wildfire in the canyon:
1-The City of Del Mar upgraded the water line in San Dieguito and Oribia and added fire hydrants to enhance its ability to fight wildfire in Crest Canyon. If the City has spent the money for this project, then the reasonable assumption would be that the city perceives a wildfire in the canyon to be a real threat. 2- San Dieguito undergrounding project received priority due to its proximity to Crest Canyon and the potential for wildfire. Again, confirming the canyon wildfire being a real threat. 1 February 22, 2022 Item III-D Closed Session
2 3-The City fire department will use the road to access the canyon in case of wildfire next to the San Dieguito properties but also further south into the canyon.
4- if the city is not able to stop the fire in the canyon, then the fire will go up the west canyon slope to crest and then down the hill into the City.

So why would the City not want control over a road that provides access to address the real wildfire threat/issue? Specially since the residents are willing to donate the easement. In my mind, the expense of repairing the road and maintaining it is minimal comparing to the benefit of having a quick reliable access that the city controls to fight wildfire in the canyon.”
Majid contributed a photo of the fire hydrant hookup to water Crest Canyon’s plan restoration project.

Eric Clark wrote:
“I think the most important use of our easement for public use is that EMS relies on this road for police, medical and fire service to Oribia residents. Utility services, likewise, depend on our road for cable, electric, water and telephone. Such basic safety and utility needs for a public street should never be beholden to easement access.

Reasons why the road is private is—none. We cannot (should not) close the street at our whim or block the road with large vehicles. The easement allotment for each property is barely a few feet from the fenced edge of most properties, making it unusable for anything other than parking a car. The parked cars are often, as you mentioned, not people visiting residents.

The only legitimate reason I can think of for the easement to remain private is if its width doesn’t meet city standards. That’s it. In front of our house, the street width is the required city width.” My personal situation at 1561 San Dieguito Drive is that my corner lot marker is 80% of the way across the pavement. I cannot as a private individual choose to re-pave the piece of land I own under the pavement without blocking the use of the road for almost all the residents of Crest Canyon. In addition, the parking strip I maintain in front of my home is used as free public parking for the fairgrounds, San Dieguito Lagoon and Crest Canyon hikers and birdwatchers from all over the continent. (See photos.)
None of the homeowners polled could identify ANY private benefit gained from owning the land under San Dieguito Drive. Our consensus is that the road’s function is 100% a public benefit to the City of Del Mar. We would ask that the City accept a road easement from the 14 homeowners on San Dieguito Drive at this time and maintain the road surface going forward.

All the best,
Amy Cheshire
1561 San Dieguito Drive
619-992-5293
Approved by Crest Canyon Neighborhood committee members:

Ann Williamson Beth Westburg
Majid Kharrati Wade Walker
2 February 22, 2022 Item III-D Closed Session
1 Melinda Gould
From: majid kharrati <[email protected]>
Sent: Tuesday, February 22, 2022 11:51 AM
To: City Clerk Mail Box
Cc: David Druker; Dwight Worden; Dan Quirk; Tracy Martinez; Terry Gaasterland Subject: RED DOT LETTER - Item D
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

To the City of Del Mar,
I’m writing this Red Dot letter in support of the City of Del Mar taking over responsibility for the private section of San Dieguito Rd. This “private” road serves not only the residents of the public section of Oribia Road but also the public agencies traffic to maintain the crest Canyon through plant establishment and after the plant establishment. This morning there were two City of Del Mar public utility trucks working on an irrigation valve that feeds the Canyon plant establishment irrigation. A few days ago the maintenance crew was testing the fire hydrants that were installed a number of years back as part of the Crest Canyon fire prevention project. The private section is in such a condition that it has become dangerous to navigate for the residents and public agencies.

I live on the privately owned portion of Oribia and drive through this private section of San Dieguito Rd and the publicly owned portion of Oribia to get to our house. As you know Crest Canyon is where the wild fire danger is one of the highest in the area and the fire can quickly spread from the canyon up the slope onto the Crest Road and the rest of the City. However the ability for Emergency vehicles to get to the canyon and to us in a timely manner is greatly reduced because of the condition of this private road. Again this issue impacts the entire City and not only the residents of our neighborhood which is another important point on why San Dieguito needs to be a public road.

The original public road shown on the map is no longer open to public and has a gate and City argues that current utility easement that has provided access since the 50s is a private road. So we the homeowners in the area while paying the city taxes as the rest of Del Mar, do not receive the same city services.

This is effectively a city road as it is used by public agencies as well as the residents of the public portion of Oribia Road. The right thing to do for the City of Del Mar is to fulfil its obligation to its citizens which are residents of this neighborhood by taking over and maintaining the road. I hope that the Council Members vote to allow the City of Del Mar to take over the road and in the process protect the City from the Crest canyon wildfire risk which will only increase in the future.

Thank you,
Majid Kharrati
1402 Oribia Rd.

Del Mar, CA 92014
(858) 349-1452
1 February 22, 2022 Item III-D Closed Session
1 Melinda Gould
From: wade walker <[email protected]>
Sent: Tuesday, February 22, 2022 11:59 AM
To: City Clerk Mail Box
Subject: Item D: Repair and maintenance of San Dieguito Drive CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Dear Councilmember,
My wife and I have lived on Oribia Road for over 30 years. Our home is reachable only by a portion of San Dieguito Drive that has been designated private. The origins of this 'private' designation are obscure and no method of compelling contributions for its upkeep was provided. The result is that no one takes responsibility for maintenance. In the time I have lived here, the road has been worked on only once. We asked for contributions and received around $3000 total.

No one contributed more than $300, most substantially less, and many nothing at all.

That repair was no more than a bandaid and the road is again becoming near impassable. There are some 30 residences who depend on this connection and all of us pay taxes at the same rate as those on other City of Del Mar maintained streets. We need access to public safety services. Our proximity to Crest Canyon makes us at a greater risk for fire. Fire trucks need to get in, residents need to get out, plus we depend on postal service, utility service and the regular commerce enjoyed by other public neighborhoods in Del Mar.

This situation has gone unresolved for far too long. Please bring this road up to City standards and maintain it as a public road
Wade Walker
1440 Oribia Road
2 February 22, 2022 Item III-D Closed Session
1 Melinda Gould
From: Kevin Nolen/USA <[email protected]>
Sent: Tuesday, February 22, 2022 11:27 AM
To: City Clerk Mail Box
Subject: San Dieguito Drive - Agenda Item D - Special City Council Closed Session Meeting 22 Feb 2022
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

To the City of Del Mar:

We are writing to encourage the city council to repair and maintain the San Dieguito Drive between San Dieguito Drive and Oribia Road.

1. Road Condition and Safety:

The road is in terrible condition and is unsafe. We are worried that in the event of an emergency, such as fire, that emergency vehicles will have difficulty navigating the road. Our neighborhood is in Crest Canyon, fire danger is a real threat to us and the city of Del Mar.

2. Private Road Status:

According to California Vehicle Code 490 – “Private road or driveway” is a way or place in private ownership and used for vehicular travel by the owner and those having express or implied permission from the owner but not by other members of the public. (Enacted by Stats. 1959, Ch. 3.) This roadway is NOT used as a private road as we do not enjoy the benefits of private road ownership. The city and the public treat this road as a public road. Whether it is San Diego City employees working in the canyon, hikers, bird watchers, and other public citizens using this roadway. The street is also bounded by 2 public roads, thus again, by definition, this road is used as a public road.

3. Transfer of Property to the city of Del Mar:

The property owners on this road have verbally represented that they are willing to give the city the property the road now covers in exchange for the repair and continued maintenance of the road.

We look forward to working with the city in coming to a fair and equitable solution.

Thank you for your time and consideration,
Juliet and Kevin Nolen
3 February 22, 2022 Item III-D Closed Session
2 Kevin Nolen, LEED AP
CA Lic # 01840398
Direct: 858.546.5487
Mobile: 858.342.3895
[email protected]
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Please see our website to view our privacy notice / statement. 4 February 22, 2022 Item III-D Closed Session
1 Melinda Gould
From: becky beckywalkerinc.com <[email protected]> Sent: Tuesday, February 22, 2022 10:24 AM
To: City Clerk Mail Box
Cc: Terry Gaasterland; Tracy Martinez; Dan Quirk; Dwight Worden; David Druker Subject: RED DOT LETTER - Item D
Follow Up Flag: Follow up
Flag Status: Flagged
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

To the City of Del Mar,
I’m writing this Red Dot letter in support of the City of Del Mar taking over responsibility for the currently private section on San Dieguito Rd. This so called “private” road is a thoroughfare for all city services to get to the houses that are located on City owned and maintained Oribia Rd. San Dieguito Rd. is the only road in Del Mar that connects two public roads and must be used by the US Postal Service, City Works, All delivery services, All Utilities services, Fire and Police services. However the private section is in such disrepair that it has become dangerous.

I live on the city owned portion of Oribia Rd and the only route to my house is through this private section of San Dieguito Rd. We live in Crest Canyon where the fire danger is one of the highest in the area but the ability for Emergency vehicles to get to us in a timely manner is greatly reduced because of this nearly impassable road. Our ability to get out to safety quickly is reduced also.

The City has maintained that, because this road was moved a few feet back in the 1950’s and never shown on the map, it is a private easement. However, the original road shown on the map has never been maintained either. In fact it doesn’t exist so this excuse seems completely out of touch and difficult to understand.

All of the homeowners in the area pay the same percentage of city taxes as the rest of Del Mar but we aren’t allowed the same city service (i.e. a safe, passable road).

This is effectively a city road and should be maintained by the City of Del Mar. Please vote to allow the City of Del Mar to take it over and take care of it’s citizens.

Thank you,
Rebecca (Becky) Walker
1440 Oribia Rd.

Del Mar, CA 92014
(619) 884-6095
1 February 22, 2022 Item III-D Closed Session
1 Melinda Gould
From: Beth Westburg <[email protected]>
Sent: Tuesday, February 22, 2022 11:04 AM
To: City Clerk Mail Box; Terry Gaasterland; Tracy Martinez; Dan Quirk; Dwight Worden; David Druker
Cc: Reid Westburg
Subject: RED DOT LETTER - Item D
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.