Agenda, regular meeting, first session — Del Mar City Council, September 19, 2022 (part 2 of 2)

https://www.delmar.ca.us/AgendaCenter/ViewFile/Agenda/_12072021-2876. The action minutes of that meeting have been included as Exhibit A.

As noted above, the Planning Commission made, and voted on, findings of unreasonable scenic view obstruction at the December 7, 2021 meeting. The purpose of the July 12, 2022 noticed public hearing is only to discuss and determine appropriate view restoration actions. Restorative action shall be determined in accordance with DMMC Chapter 23.51 and direction given by the Planning Commission at the December 7, 2021 meeting.

The view restoration hearing was originally set for July 12, 2022. After the distribution of the staff report packet for the July 2022 PC meeting, the Tree Owner’s representative requested a continuance of the project to a future hearing date in order to have more time to reach a resolution that would be acceptable to both parties. After careful consideration, the Commission granted the continuance, time certain to the August 9, 2022 Planning Commission meeting.

PROPOSED VIEW RESTORATION PLANS
Following are three restoration plans submitted by certified arborists, proposing remedies for the scenic view loss from 225 Torrey Pines Terrace.

Applicant Arborist (Robert Walton) View Restoration Plan:

In the time since the December 2021 Planning Commission meeting, the Applicants were instructed to hire a certified arborist, familiar with Del Mar and Torrey Pine trees, and to develop a view restoration plan, for the Planning Commission subcommittee to review that would reasonably restore the scenic view from 225 Torrey Pines Terrace. The draft plan, included as Exhibit B, was prepared by Registered Consulting Arborist and Certified Arborist Robert Walton, and includes several visual exhibits depicting the three (3) trees in question and the point to which the Applicants view should be restored. This restoration plan also includes a recommendation for how each of the three trees should either be trimmed, or removed, in order to restore the Deftos’ views from 2012. As shown in the draft plan, Mr. Walton recommends removal of tree 1 and “dropcrotch” crown reduction of trees 2-3 by no more than 20% in order to restore the Deftos’ views to approximately 8-9 years ago. The draft plan also provides an alternative option for tree #1, which would be to dropcrotch the upper canopy by 5 feet and then thin the rest of the canopy by 50-60%. This would not provide the same view restoration as removal of tree 1.

Original Tree Owner Arborist (Ted Safford) View Restoration Plan:

Upon receipt of the Robert Walton view restoration plan, the subcommittee requested the Tree Owner reach out to their arborist to also develop a separate restoration plan. The restoration plan provided by Ted Safford (Exhibit C) rebuts the proposals made by Robert Walton with regard to tree 1. Mr. Safford does not recommend removal of tree 1, nor does he propose crown reduction of the three trees in question. Instead, Mr. Safford recommends thinning the branching structure of each tree an additional 10% to allow sight through the trees. 2 August 9, 2022 Item 01 1454 September 19, 2022 September 19, 2022 Item 12 Item 12

PLANNING COMMISSION
STAFF REPORT: TVS-21-002
August 9, 2022

Page 3 of 4 ends

New Tree Owner Arborist (Mark Wisniewski) Restoration Plan The Tree Owners have subsequently retained Certified Arborist Mark Wisniewski to prepare an updated view restoration plan. The proposed work schedule listed in the Wisniewski plan (Exhibit D), describes a series of distinct pruning events over a five-year period. Each pruning event listed in the plan limits the pruning of live material of each of the trees to 20%. There are two major pruning events listed in the plan, Winter 2022-23 and Winter 2023-24, which would implement the subcommittee recommendation of 40% reduction of the canopy of tree 1 and 20% reduction of the rest of the trees. The third pruning event listed in the restoration plan, Winter 2025-26 implements a trimming plan conducted every two years, as recommended by the subcommittee in their report.

Planning Commission Subcommittee Recommendation:

Prior to the July 12, 2022 Planning Commission meeting, the Planning Commission subcommittee had reviewed the proposed view restoration plans from Robert Walton and Ted Safford and provided their recommendations for each tree (see Exhibit E). For tree 1, the subcommittee recommended lacing and dropcrotch pruning to reduce the entire canopy by 40%. This is a deviation from the plans provided by both Robert Walton and Ted Safford. For trees 2-4, the recommendation by the subcommittee would be to lace and dropcrotch prune to reduce each tree canopy by 20%, as Robert Walton has proposed.

Upon review of the subcommittee recommendation and receipt of a continuance to the August PC meeting, the Tree Owners hired Mark Wisniewski to attempt to implement the subcommittee trimming plan. While the Wisniewski plan would ultimately result in implementation of the subcommittee recommendation of 40% reduction of tree 1 and 20% reduction of trees 2-3, it would take longer to do so than the subcommittee plan. Mr. Wisniewski is proposing this reduction over two trimming cycles, as opposed to one, and also implements a trimming plan for every two years.

Phasing the trimming would result in maintaining the long-term health of the trees, and would be in accordance with the City’s Public Tree Policy Manual, which states 25% trimming of any tree in a period less than one-year is excessive.

CORRESPONDENCE
Following the December 7, 2021 public hearing on application TVS21-002, staff has received correspondence from the Applicants and multiple neighbors in support of the Applicants’ proposed view restoration plan. This correspondence has been included as Exhibits F and G, respectively.

Staff also received correspondence from the Tree Owner’s original arborist and representative, listed as Exhibit H to this report.

STAFF RECOMMENDATION
The Planning Commission should review the view restoration plans provided by Robert Walton, Ted Safford, Mark Wisniewski, and the subcommittee recommendation. The Planning 3 August 9, 2022 Item 01 1465 September 19, 2022 September 19, 2022 Item 12 Item 12

PLANNING COMMISSION
STAFF REPORT: TVS-21-002
August 9, 2022

Page 4 of 4 ends

Commission should consider the proposed (subcommittee) view restoration plan relative to the factors listed in DMMC Section 23.51.060 when determining if crown reduction by dropcrotching would be the most appropriate restorative action in this situation. Should the Planning Commission agree with the subcommittee, staff has provided a draft resolution (Exhibit I) that memorializes the actions taken by the Planning Commission at the December 7, 2021 PC meeting and includes the view restoration plan proposed in Exhibit E. However, should the Commission determine that one of the other options presented for view restoration is more appropriate, staff would amend the (draft) resolution in accordance with any discussion and motions made at the August 9, 2022 hearing and prepare the resolution for the Chair’s signature.

Respectfully Submitted,
Adriana Jaramishian
Associate Planner
Exhibits
Exhibit A – December 7, 2021 PC Meeting Minutes
Exhibit B – Robert Walton Proposed View Restoration Plan Exhibit C – Ted Safford Proposed View Restoration Plan
Exhibit D – Mark Wisniewski View Restoration Plan
Exhibit E – Planning Commission Subcommittee Proposed View Restoration Plan Exhibit F – Applicant Correspondence
Exhibit G – Neighbor Correspondence
Exhibit H – Tree Owner Correspondence
Exhibit I – Draft Planning Commission Resolution PC 2022-XX 4 August 9, 2022 Item 01 1476 September 19, 2022 September 19, 2022 Item 12 Item 12

CITY OF DEL MAR

PLANNING COMMISSION REGULAR MEETING
(ACTION) MINUTES
December 7, 2021
Via Teleconference
The minutes set forth the actions taken by the Planning Commission on the matters stated.

Audio/video recordings of the Planning Commission proceedings are retained for a period of ten years, in accordance with the City's Records Retention Schedule. Audio/video recordings, as well as written materials presented to the Planning Commission, including Red Dots (materials provided to the Planning Commission after the agenda has published), are available on the City’s website at www.delmar.ca.us/AgendaCenter or by contacting the Administrative Services Department at (858) 755-9313.

CALL TO ORDER
Chairperson Bakker called the Regular Meeting to order at 6 p.m.

ROLL CALL
Chair Ted Bakker, Vice Chair Philip Posner, and Commissioners John Farrell, Don Countryman, and Claire McGreal.

Absent: None
Staff Present: Planning and Community Development Director Joseph Smith, Principal Planner Matt Bator, Senior Planner Evan Langan, and Associate Planner Adriana Jaramishian

APPROVAL OF MINUTES
The November 9, 2021 meeting minutes were unanimously approved; Commissioner Countryman abstained since he was not at the previous hearing.

UPDATE
1) Director Smith updated the Planning Commission on 1) a Citizens Initiative related to allowing for local controls to trump State laws in certain land use situations; 2) that SB9 will not be implemented until the City is able to process a Local Coastal Program amendment to incorporate the state requirements into the City’s Local Coastal Program; 3) that the owner of 1234 Camino Del Mar is in discussions with the City on potential projects to redevelop the site but it awaiting the parking changes to become permanent before moving forward with anything (the City does not have any formal applications for the property); 4) and an update on discussion with the fairgrounds regarding housing efforts.
5 August 9, 2022 Item 01
Exhibit A
1487 September 19, 2022 September 19, 2022 Item 12 Item 12 Planning Commission Regular Minutes
December 7, 2021

Page 2 of 7 ends

2) Senior Planner Langan provided an update on the 941 Camino Del Mar, Hillstone, and Watermark projects.

PLANNING COMMISSION/STAFF DISCUSSION (Non-Application Items) The Commission elected a new Chair and Vice Chair (to take affect at the next meeting) as follows:

1. Vice Chair Philip Posner was nominated for chair by current Chair Ted Bakker, seconded by Commissioner Claire McGreal. This was approved unanimously (5-0).

2. Commissioner Don Countryman was nominated for vice chair by Chair Ted Bakker, seconded by Vice Chair Philip Posner. This was approved unanimously (5-0).

ITEMS NOT LISTED ON THE AGENDA (Oral Communications)
None.

DISCUSSION AND BRIEFING (Application Items)
Principal Planner Bator confirmed that there were no items eligible for the consent calendar.

CONTINUED ITEMS:

ITEM 1
TVS20-002
Applicants: Robert and Christine Fried
Applicant’s Address: 910 Stratford Court
Applicant’s APN: 300-174-20
Tree Owners: Adam and Mary Cherry
Site Address: (Vegetation Location): 135 9th Street
Site APN (Vegetation Location): 300-252-14
Staff Contact: Matt Bator, AICP, Principal Planner
Environmental Status: Exempt
Description: The applicants are seeking relief under DMMC Chapter

23.51 (Trees, Scenic Views, and Sunlight) for claims of scenic view blockage from vegetation located on the neighboring property. (Note: Determinations regarding findings of unreasonable scenic view obstruction were made by the Planning Commission at its September 14, 2021 meeting. The purpose of the public hearing at the December 7, 2021 meeting is only to discuss and determine appropriate view restoration actions, in accordance with DMMC Chapter 23.51 and direction given by the Planning Commission at the September 14, 2021 meeting.)
Principal Planner Bator provided the staff presentation and answered questions. 6 August 9, 2022 Item 01 1498 September 19, 2022 September 19, 2022 Item 12 Item 12 Planning Commission Regular Minutes
December 7, 2021

Page 3 of 7 ends

Disclosures:

Commissioner Farrell: Read all materials, spoke with staff, met with Bob Scott at Cherry property, has not spoken with subcommittee prior to hearing Commissioner McGreal: Meeting with Vice Chair Posner at Fried’s home while developing restoration plan as part of the subcommittee work that was done prior to the hearing; worked with staff on restoration plan; received an email from Frieds but did not answer; spoke with Bob Scott over phone (representing tree owner); visited Cherry property and Bob Scott and Bob Fried were there at the same time.

Commissioner Posner: Identical to Commissioner McGreal’s disclosures except that his visit to the Cherry property was only with Bob Scott.

Commissioner Countryman: None
Chair Bakker: Read the materials, spoke with staff
Public Hearing:

The Applicant, Bob Fried, provided a presentation.

The Tree Owner’s representative, Bob Scott, provided a presentation.  There was no public testimony for this item.

The Applicant, Bob Fried, provided a rebuttal.

The Tree Owner’s representative, Sam Blick, provided a rebuttal.

Chair Bakker closed the public hearing.

Planning Commission Deliberation/Discussion:

The Planning Commission generally supported a restorative action whereas the Applicant is entitled to annual trimming of the two Monterrey Cyprus trees located on the property at 135 9th Street in order to restore the scenic view as observed in 2016. Further, tree trimming shall be performed in accordance with the “View Restoration Plan,” prepared by Wisniewski & Associates, and dated December 1, 2021. In performing restorative work described in Section 4, the procedures set forth in DMMC Section 23.51.080 shall be followed.

Commissioner Farrell expressed concern regarding the intent of the Applicant in going ahead with their application even while the sale of their property is pending, with the transaction already in escrow. No other Commissioner seconded the motion so the motion failed. 7 August 9, 2022 Item 01 15049 September 19, 2022 September 19, 2022 Item 12 Item 12 Planning Commission Regular Minutes
December 7, 2021

Page 4 of 7 ends

MOTION BY VICE CHAIR POSNER, SECOND BY COMMISSIONER COUNTRYMAN TO

ACCEPT THE RESTORATION PLAN AS RECOMMENDED BY STAFF IN CONSULTATION WITH THE RESTORATION PLAN SUBCOMMITTEE (VOTE 4-1)
VOTE:

Ayes: Chair Bakker, Vice Chair Posner, and Commissioners McGreal and Countryman Noes: Commissioner Farrell

Absent: None
Abstain: None
Commissioner Countryman left the meeting after the first item at 7:54pm.

ITEM 2
TVS21-002
Applicants: Michael and Angela Deftos
Applicant’s Address: 225 Torrey Pines Terrace
Applicant’s APN: 301-033-32
Tree Owners: Harvey and Sheryl White
Site Address (Vegetation Location): 473 W Ocean View Avenue Site APN (Vegetation Location): 301-033-04
Staff Contact: Adriana Jaramishian, Associate Planner
Environmental Status: Exempt
Description: The applicants are seeking relief under DMMC Chapter

23.51 (Trees, Scenic Views, and Sunlight) for claims of scenic view blockage from vegetation located on the neighboring property.

Associate Planner Jaramishian provided the staff presentation.

Disclosures:

All Commissioners read the staff report and red dot materials.

Vice Chair Posner and Commissioners McGreal and Farrell visited both the residences of the Applicants (Deftos, 225 Torrey Pines Terrace) and the Tree Owners (Whites, 473 W. Ocean View Avenue)
Chair Bakker was able to visit the Applicant’s site but not able to get access to the Tree Owner’s site.

Commissioner Farrell further disclosed that he had met and spoken with Sheryl White at sometime when they were on a Jury pool. He additionally disclosed that his wife had previously worked on a staff with Sheryl White but that they no longer worked together and that he felt able to make an objective decision.

Public Hearing:

The Applicant, Michael Deftos, gave a presentation.
8 August 9, 2022 Item 01 1510 September 19, 2022 September 19, 2022 Item 12 Item 12 Planning Commission Regular Minutes
December 7, 2021

Page 5 of 7 ends

The Tree Owner, Sheryl White, gave a presentation.

Katherine White, 520 Torrey Point Road spoke during public testimony.

The Applicant gave a rebuttal.

The Tree Owner gave a rebuttal.

Chair Bakker closed the public hearing.

Planning Commission/Deliberation/Discussion:

MOTION BY COMMISSIONER FARRELL, SECOND BY VICE CHAIR POSNER FINDING

THAT THE APPLICANT HAS MADE REASONABLE EFFORTS TO RESOLVE THE DISPUTE PURSUANT TO DMMC 23.51.050.A. (VOTE 4-0-1)
VOTE:

Ayes: Chair Bakker, Vice Chair Posner, and Commissioners McGreal and Farrell Noes: None

Absent: Commissioner Countryman
Abstain: None

MOTION BY COMMISSIONER MCGREAL, SECOND BY COMMISSIONER FARRELL FINDING THAT PURSUANT TO DMMC 23.51.050.B. THE TORREY PINE TREES LOCATED AT 473 OCEAN VIEW AVENUE UNREASONABLY OSTRUCTS THE SCENIC VIEW OF THE APPLICANT AT 225 TORREY PINES TERRACE AND THAT THE VIEW BLOCKAGE IS EXTENSIVE. (VOTE 4-0-1)
VOTE:

Ayes: Chair Bakker, Vice Chair Posner, and Commissioners McGreal and Farrell Noes: None

Absent: Commissioner Countryman
Abstain: None
The commission continued the item assigning a subcommittee consisting of Commissioner Farrell and Chair Bakker to come back with a recommendation for restorative action to be considered at a future hearing with the following feedback:

1. Tree removal is not preferred or supported

2. Tree lacing and pruning is the preferred action
9 August 9, 2022 Item 01 1521 September 19, 2022 September 19, 2022 Item 12 Item 12 Planning Commission Regular Minutes
December 7, 2021

Page 6 of 7 ends

3. View may improve as the tree grows

4. View restoration may not be obtained for several years so initial plan is to reduce the amount of obstruction until the tree grows to a height that restores the view

5. Use of the City arborist is available but not mandatory ITEM 3
TVS21-003
Applicants: Harold and Carolyn Michaels
Applicant’s Address: 237 Torrey Pines Terrace
Applicant’s APN: 301-033-40
Tree Owners: Harvey and Sheryl White
Site Address (Vegetation Location): 473 W Ocean View Avenue Site APN (Vegetation Location): 301-033-04
Staff Contact: Adriana Jaramishian, Associate Planner
Environmental Status: Exempt
Description: The applicants are seeking relief under DMMC Chapter

23.51 (Trees, Scenic Views, and Sunlight) for claims of scenic view blockage from vegetation located on the neighboring property.

The Commission waived the staff report for this item since it was regarding the same trees (different Applicant) as in Item #2.

Disclosures:

Commissioners McGreal, Posner, and Farrell did site visits and spoke with both the applicants and the Tree Owner and read all materials.

Commissioner Farrell additionally disclosed that he accepted food while at the Applicants home.

Chair Bakker was only able to do a site visit at the Applicant’s property.

Public Hearing:

The Applicant, Carly Michaels, gave a presentation
The Tree Owner spoke briefly about this item.

There were no public speakers for this item.

Neither the Applicant nor the Tree Owner gave a rebuttal.

Chair Bakker closed the public hearing.

Planning Commission Deliberation/Discussion:

The Planning Commission agreed that the Torrey Pine trees located on the private property of 473 Ocean View Avenue creates unreasonable scenic view obstruction when looking south and west from the Applicant’s primary living area (PLA), which is the living/dining room of the residence at 237 Torrey Pines Terrace.
10 August 9, 2022 Item 01 1532 September 19, 2022 September 19, 2022 Item 12 Item 12 Planning Commission Regular Minutes
December 7, 2021

Page 7 of 7 ends

MOTION BY COMMISSIONER MCGREAL, SECOND BY VICE CHAIR POSNER FINDING

THAT THE APPLICANT HAS MADE REASONABLE EFFORTS TO RESOLVE THE DISPUTE PURSUANT TO DMMC 23.51.050.A. (VOTE 4-0-1)
VOTE:

Ayes: Chair Bakker, Vice Chair Posner, and Commissioners McGreal and Farrell Noes: None

Absent: Commissioner Countryman
Abstain: None

MOTION BY COMMISSIONER MCGREAL, SECOND BY COMMISSIONER FARRELL FINDING THAT PURSUANT TO DMMC 23.51.050.B. THE TORREY PINE TREES LOCATED AT 473 OCEAN VIEW AVENUE UNREASONABLY OSTRUCTS THE SCENIC VIEW OF THE APPLICANT AT 237 TORREY PINES TERRACE AND THAT THE VIEW BLOCKAGE IS EXTENSIVE. (VOTE 4-0-1)
VOTE:

Ayes: Chair Bakker, Vice Chair Posner, and Commissioners McGreal and Farrell Noes: None

The Applicant and Tree Owner agreed to have tree #5 trimmed outside of this process to be paid for by the Whites.

ADJOURNMENT
The meeting was adjourned at 10:18 PM.
11 August 9, 2022 Item 01 1543 September 19, 2022 September 19, 2022 Item 12 Item 12 Robert Walton Jr., Consulting Arborist
Registered Consulting Arborist #394
Certified Arborist #WE-192A
TRAQ (Tree Risk Assessment Qualified)
9719 Los Coches Rd, Lakeside, CA 92040
[619] 443-1770 fax [619] 443-3324
www.rca394.com
[email protected]
January 22, 2022
Michael Deftos
225 Torrey Pines Terrace
Del Mar, CA 92014
On January 13, 2022, I met with Michael Deftos at his residence at 225 Torrey Pines Terrace in Del Mar, California. The purpose of the site visit is to recommend a view restoration plan to restore a view blocked by three trees.

The trees are all Torrey pines, Pinus torreyana, on the southern side of the Deftos’ property, Photo 1.

Deftosview page 1 of 5
Photo 1
12 August 9, 2022 Item 01
Exhibit B
1554 September 19, 2022 September 19, 2022 Item 12 Item 12 Robert Walton, RCA 394 January 22, 2022
They are on the southern neighbor’s property. The trees, per Mr. Deftos, are “subject to the Trees, Scenic View and Sunlight Ordinance (DMMC 23.51) for which the Planning Commission has made a determination that the view is unreasonably obstructed.”
TREE 1
Photo 2 shows Tree 1 as
it is today, blocking the
southern view of Torrey
Pines and La Jolla.

Photo 3 is a Google Earth
street view dated March
of 2012. The red circled
window in Photo 3,
enlarged in Photo 4, is
looking due south over
the tree in Photo 2. The
view of Torrey Pines and
La Jolla can clearly be
seen above the neighbor’s
pine, red arrow in Photo 4.

Deftosview page 2 of 5
Photo 2
Photo 4
Photo 3
13 August 9, 2022 Item 01 1565 September 19, 2022 September 19, 2022 Item 12 Item 12 Robert Walton, RCA 394 January 22, 2022
In order to restore the view that was present 10 years ago, the tree would have to be cut back to the broken yellow line Photo 5. This is a technique called topping, which is a bad pruning technique even in trees that regenerate new growth from epicormic shoots. However, the majority of pines, including the Torrey pine, do not regenerate epicormic shoots (new growth off stubbed cuts.). Topping would leave cut ends that would not regenerate new growth. The best view that could be obtained on Tree 1, and retain that tree, is to dropcrotch (a pruning technique that cuts back a stem to another stem that is one third the diameter size of the parent stem or larger) the upper canopy (the area above the broken yellow line) by approximately five feet and thin the balance of the canopy by 50% to 60% thin. This pruning would leave cuts that will bleed sap for five years or more. The lower part of the tree has had the green (growing tips or apical meristems) stripped out, which Deftosview page 3 of 5
Photo 5
14 August 9, 2022 Item 01 1576 September 19, 2022 September 19, 2022 Item 12 Item 12 Robert Walton, RCA 394 January 22, 2022
makes pruning it lower not possible. The result will be the tree being lowered to the broken red line in Photo

5. While the thinning would reveal more sky, it would not reveal more of the lost scenery.

This tree could easily have been maintained lower six to eight years ago. The most reasonable solution to restore a reasonable view is to remove this particular tree.

TREE 2 & TREE 2 (Photo 6) (yellow arrow in Photo 6 is the Deftos view) Tree 2 can be dropcrotched to lowered by approximately 8 feet, which will be to the height of the lemonade berry, Rhus integrifolia, on the Michaels’ property (east of the Deftos property).

Deftosview page 4 of 5
Photo 6
15 August 9, 2022 Item 01 1587 September 19, 2022 September 19, 2022 Item 12 Item 12 Robert Walton, RCA 394 January 22, 2022
Tree 3 can be dropcrotched to the height of Tree 2. This, if properly done, will be flatter, but will retain the necessary apical meristems to fill in.

To recap…
The removal of Tree 1 and the crown reduction (reducing the crown by dropcrotching by no more than 20%.) of Tree 2 and Tree 3 will restore the view by 8 to 9 years.

If you have any questions, please call.

Robert Walton, Registered Consulting Arborist #394 & Certified Arborist WE-0192A Deftosview page 5 of 5
16 August 9, 2022 Item 01 1598 September 19, 2022 September 19, 2022 Item 12 Item 12 4320 Vallejo Avenue • San Diego, CA 92117 • (858) 272-1566 • (858) 270-7001 fax ——————————————————————————————————————————————————————— A DIVISION OF CERTIFIED ARBORCARE • www.tedsaffordarborist.com • CONTRACTOR LIC. #923924 April 4, 2022
Harvey & Sheryl White
473 Ocean View Avenue
Del Mar, CA 92014
Dear Mr. & Mrs. White,
This brief report follows a consultation I had with you on March 11, 2022 to discuss a reasonable solution to the view impediment suffered by the Deftos at 225 Torrey Pines Terrace. This report is also a rebuttal to the January 22, 2022 report written by consulting arborist Robert Walton who concludes that “the most reasonable solution to restore a reasonable view is to remove this particular tree” (tree #1).

I think it would be an environmental tragedy to remove any of these trees. Please spare me the task of discussing the intrinsic and extrinsic value of trees, let alone the iconic and protected species:

Pinus torreana.

Crown reducing the three Torreys pictured on page 4 of Mr.

Walton’s report and diagrammed on page 3 with the red dotted line would offer little relief to the Deftos. Heading the trees back as diagrammed by the yellow dotted line on page 3 would destroy the trees’ beauty and dignity and probable kill them.
17 August 9, 2022 Item 01
Exhibit C
16059 September 19, 2022 September 19, 2022 Item 12 Item 12 The only reasonable solution would be to thin the branching structure an additional 10% to allow sight through the trees. This would enhance the Deftos’ view of the ocean without significantly impacting the health or dignity of the trees. As the trees continue to grow higher, the Deftos’ view will also be enhanced as the stripped, lion-tailed lower canopy comes into view, further opening the ocean view.

Sincerely,
Ted Safford
Certified Arborist ISA #WE912
18 August 9, 2022 Item 01 1610 September 19, 2022 September 19, 2022 Item 12 Item 12 August 2, 2022
Harvey & Sheryl White
473 Ocean View Avenue
Del Mar, CA 92014
RE: White Residential Property
473 Ocean View Avenue, Del Mar, CA
View Restoration Plan
Wisniewski & Associates File No. 22-1005
Dear Mr. & Ms. White
The following is my proposed View Restoration Plan with supporting background information on the methodology used that you requested. This report is also intended to respond to the scenic view restoration recommendations of the Del Mar Planning Commission per their review of applications TVS-21-002 and TVS-21-003.

BACKGROUND - INITIAL SITE VISIT
I first visited the site to evaluate four Pinus torreyana - Torrey Pine trees, on 05/05/1998 in the company of Adam Birnbaum. The purpose of the visit was to evaluate the size and condition of the trees and the potential impacts to the trees from the White’s proposed residential construction project.

I submitted a report of my observations, concerns and recommendations for protection of the Torrey Pine trees during construction.

The following month after reviewing the construction drawings that were submitted for this project, I prepared an additional report of my observations, conclusions and additional recommendations.

BACKGROUND - SECOND SITE VIST
On 07/29/22 I visited the site and met with Ms. Sheryl White to evaluate the current condition of the trees. I was also to observe the trees from the backyards of the two uphill neighbors Michael and Angela Deftos and Hal and Carly Michaels. The purpose of the visits was to observe the condition of the trees and their obstruction of scenic views. I was asked to prepare this report of my recommendations for restoration of those views.

WISNIEWSKI & ASSOCIATES

LANDSCAPE ARCHITECT - INDEPENDENT CONSULTING ARBORIST
2036 Countrywood Way - Encinitas, California 92024-5401 (760) 840-7501
Licensed Landscape Architect No. 3281
International Society of Arboriculture - Certified Arborist No. WE-0742A - Retired International Society of Arboriculture - Tree Risk Assessment Qualified - Retired 19 August 9, 2022 Item 01
Exhibit D
1621 September 19, 2022 September 19, 2022 Item 12 Item 12 White Residential Property
View Restoration Plan
Wisniewski & Associates 22-1005
August 2, 2022
2 I also reviewed a large number of documents related to the Trees, Scenic Views and Sunlight Applications submitted by the Deftos and Michaels. The documents included City staff reports and other related documents. Also included were arborist reports from Robert Walton, Jr. and Ted Safford and also a report from the Planning Commission subcommittee.

When viewing the trees from the Deftos and Michaels backyards I stood just outside of their sliding glass doors as this was as close as I could get to their Primary Living Area (PLA). It is important to note that changes in location, height (standing or sitting), and distance to the trees can change the view.

For example, in Mr. Walton’s Report for Michael Deftos in photo 5 (Tree 1), the photograph appears to have been taken from a location close to the canyon rim making the tree appear taller than the photo of the same tree in this report. This makes the tree in Walton’s photo appear taller than it appears in my photo of the same tree when compared to the horizon line. The deck outside of the Deftos backdoor, where I was standing, is several feet higher and therefore the tree appears shorter when compared to the horizon line.

I noted numerous Torrey Pine trees in the neighborhood, including on both the Deftos and Michaels properties where large Torrey Pines had many of their smaller and lower branches removed so that views could be seen through the larger remaining branches.

PRUNING STANDARDS AND TERMS DEFINED
In an effort to try to reduce ambiguity and provide for commonality in the use of pruning terms I rely on the “American National Standard - Tree, Shrub, and Woody Plant Management - Standard Practices (Pruning). ANSI A300 (Part 1) - 2017 Pruning”.

This publication is periodically updated by a national committee of diverse industry professionals and is published by the Tree Care Industry Association, Inc.

The following selected terms are defined in the above cited publication.

10.1 arboriculture: The art, science, technology, and business of commercial, public, and utility tree care.

10.33 pruning: The selective removal of plant parts to achieve defined objectives.

10.34 pruning amount: Quantity of plant parts removed at one pruning, expressed in terms of a number of branches or other parts removed, and/or percentage of the crown or buds removed on an entire tree or specified branches.

10.38 reduction: Arboricultural term referring to decreasing branch length or plant height and/or spread.

10.39 reduction cut: A pruning cut that removes the larger of two or more branches or stems, or one or more codominant stems(s), to a live lateral branch, typically at least 20 August 9, 2022 Item 01 1632 September 19, 2022 September 19, 2022 Item 12 Item 12 White Residential Property
View Restoration Plan
Wisniewski & Associates 22-1005
August 2, 2022
3 one-third the diameter of the stem or branch being removed.

10.58 thinning: An arboriculture term used to describe selective pruning to reduce density of branches and foliage.

10.8 clean: Arboricultural term used to describe selective pruning to remove one or more of the following: dead, diseased, infested, rubbing, declining, detached and/or broken branches.

The following is from the 2008 version of the American National Standard for pruning.

It was not included in the 2017 version.

4.58 vista/view prune: Pruning to enhance a specific view without jeopardizing the health of the tree.
“Public Tree Policy Manual for the City of Del Mar”, Received Final Approval on February 2, 2004.

11. Excessive Pruning means removing in excess of one-fourth (25 percent) or greater of the functioning leaves and stems. Pruning in excess of 25 percent is injurious to the tree and is a prohibited act.

Note: “Lacing” is not defined or used in any American National Standard publication concerning tree pruning. This term is primarily localized to the San Diego and Orange County areas appearing in ads for tree care contractors and has subsequently been picked up by the general public as some sort of very special technique.

Since it is not defined every contractor who uses it has their own definition or explanation of “lacing”. This creates confusion and uncertainty about the intention and the outcome of the work.

VIEW RESTORATION PLAN
The following is noted in Ted Safford’s report dated 09/26/21. The trees were pruned in February 2021.
“We probably reduced the density of the branching of each of the trees by 25%. To thin the branching structure more would be detrimental to the long-term health of the tree.” Mature trees cannot tolerate being regularly pruned to remove 25% of the live canopy.

With this in mind I propose a multi-year approach to restoring the views to the two properties while not overly stressing the trees and potentially leading to their decline.

There are five trees to be addressed based on the numbering system that has been established by Mr. Walton in his report for the Michaels. 21 August 9, 2022 Item 01 1643 September 19, 2022 September 19, 2022 Item 12 Item 12 White Residential Property
View Restoration Plan
Wisniewski & Associates 22-1005
August 2, 2022
4 Objective
Restore the scenic views to the fullest extent possible without excessive damage to the trees so that they remain viable. The proposed work schedules below describe a series of distinct pruning events over a five-year period which cumulatively will have success in restoring views. Spreading the view restoration pruning work out over the course of five years will minimize damage to the trees’ health.

Each Proposed Schedule of Work is a distinct pruning event and the work performed at one event is not intended to limit the described pruning work of any later event.

Proposed Schedule of Work
Winter 2022 - 2023
Limit the removal of live material from any tree during this even to a maximum of 20%.

The intention is not to create straight vertical or horizontal pruning lines, but to stagger the reduction pruning cuts 1’-2’ back past where the line of sight or clearance limit is required. This will help maintain a more natural appearance and avoid the necessity of having to provide any additional pruning in most of those locations in the near future.

It is critical that qualified tree care personnel are present on the site during the work who are skilled at properly estimating the percent of live foliage being removed from each tree while the work progresses. This will also allow an evaluation of the success of the view restoration pruning.

Proceed with the pruning in the following order of work.

1. Clean the canopies of all five trees.

2. Use proper reduction pruning cuts to reduce the canopy width of all five trees to achieve 10’ of separation between the canopies. This procedure is recommended to restore the views between the trees while also reducing the chance of fire spread in case of a wildfire. Evaluate the percentage of live material removed from each tree before proceeding to Step 3. If it is less than 20% proceed to the following Steps. If the amount of live material is 20% or greater do no further work on the tree until the next pruning cycle.

3. For Tree 1 provide an enhanced view through the center of the tree where the foliage and branches are the least dense. Use reduction and thinning cuts to create a view that is +/-5’ wide and is open through the top of the canopy. See Photo No. 1.

Then use reduction cuts to reduce the width of the west side of the canopy+/- 5’. Stop removing or reducing branches at the point when the downhill trees and vegetation block the view.
22 August 9, 2022 Item 01 1654 September 19, 2022 September 19, 2022 Item 12 Item 12 White Residential Property
View Restoration Plan
Wisniewski & Associates 22-1005
August 2, 2022
5 Next use reduction cuts to remove the tallest branches +/- 5’ deep into the canopy.

This will also have the effect of thinning the canopy. Stop work whenever a total of 20% of the live foliage has been removed from all pruning operations. Do no further work on the tree until the next pruning cycle.

4. For Tree 2 use reduction cuts to reduce the height of the canopy +/- 6’. Use thinning cuts to reduce the density of the canopy. Stop work whenever a total of 20% of the live foliage has been removed from all pruning operations. Do no further work on the tree until the next pruning cycle.

5. For Tree 3 a different approach is recommended since due to previous pruning, which appears to have been topping, the majority of the upper canopy is composed of numerous upright growing branches that are similar in size. Use thinning cuts to remove as many branches as possible while attempting to mimic the structure and shape of the two Torrey Pines growing on the Michaels property. Stop work whenever a total of 20% of the live foliage has been removed from all pruning operations. Do no further work on the tree until the next pruning cycle.

In time, with continued regular pruning, this tree will also become a skyline tree with framed views through the canopy.

6. Trees 4 and 5 have not been properly pruned, but have numerous mid branch cuts that will dieback. Using proper reduction pruning cuts to remove the bad cuts and reduce the height of the trees to the point where they do not obstruct any of the view when viewed from the sliding glass door on the Michaels deck. Stop work whenever a total of 20% of the live foliage has been removed from all pruning operations for each tree.

Do no further work on the tree until the next pruning cycle.

7. The site shall be left in a clean condition and the debris shall be properly disposed of.

Winter 2023-2024
Limit the removal of live material from any tree during this event to a maximum of 20%.

Prior to scheduling the work, review the current conditions of the trees to determine if any modifications need to be made to the work plan.

Proceed with the pruning in the following order of work.

1. Clean the canopies of all five trees.

2. For Trees 1, 2, and 3 use reduction and thinning cuts to provide 10’ clearance from and above any chimney or flue pipe to reduce wildfire risk. See attached “San Diego Regional Urban Forest Clearance Standards for Trees”.
23 August 9, 2022 Item 01 1665 September 19, 2022 September 19, 2022 Item 12 Item 12 White Residential Property
View Restoration Plan
Wisniewski & Associates 22-1005
August 2, 2022
6 3. For Tree 1 maintain the enhanced view through the center of the tree where the foliage and branches are the least dense use reduction and thinning cuts to expand the view so that is +/-6’ wide and is open through the top of the canopy. See Photo No. 1.

Next use reduction cuts to remove the tallest branches +/- 5’ deep into the canopy.

This will also have the effect of thinning the canopy. Stop removing branches in any area of the canopy when the downhill trees and vegetation continue to block the view.

Stop work whenever a total of 20% of the live foliage has been removed from all pruning operations. Do no further work on the tree until the next pruning cycle.

4. For Tree 2 use reduction and thinning cuts to reduce the height of the canopy +/- 6’.

Use thinning cuts to reduce the density of the canopy. Stop work whenever a total of 15% of the live foliage has been removed from all pruning operations. Do no further work on the tree until the next pruning cycle.

5. For Tree 3. use thinning cuts to remove the upright branches while attempting to mimic the structure and shape of the two Torrey Pines growing on the Michaels property.

Also use thinning cuts to reduce the density of the upper canopy. Stop work whenever a total of 15% of the live foliage has been removed from all pruning operations. Do no further work on the tree until the next pruning cycle.

In time, with continued regular pruning, this tree will become a skyline tree with framed views through the canopy.

6. For Trees 4 and 5 using proper reduction pruning cuts to maintain the height of the trees to the point where they do not obstruct any of the view when viewed from the sliding glass door on the Michaels deck. Stop work whenever a total of 15% of the live foliage has been removed from all pruning operations. Do no further work on the tree until the next pruning cycle.

7. The site shall be left in a clean condition and the debris shall be properly disposed of.

Winter 2025-2026
Limit the removal of live material from any tree during this event to a maximum of 15%.

Prior to scheduling the work, review the current conditions of the trees to determine if any modifications need to be made to the work plan.

Proceed with the pruning in the following order of work.

1. Clean the canopies of all five trees.
24 August 9, 2022 Item 01 1676 September 19, 2022 September 19, 2022 Item 12 Item 12 White Residential Property
View Restoration Plan
Wisniewski & Associates 22-1005
August 2, 2022
7 2. For Trees 1, 2, and 3 use reduction and thinning cuts to provide 3’ clearance from the sides of the building and 5’ above the roof to reduce wildfire risk. See attached “San Diego Regional Urban Forest Clearance Standards for Trees”.

3. For Tree 1 maintain the enhanced view through the center of the tree where the foliage and branches are the least dense and is open through the top of the canopy. See Photo No. 1.

Next use reduction cuts to remove the tallest branches +/- 5’ deep into the canopy that may have grown since the last pruning cycle. Also use reduction and thinning cuts to remove any branches that may have grown up in th front of the canopy. Reduce the candles in length by 75% for any branches that may block the restored views.

Stop removing branches or pinching candles in any area of the canopy when the downhill trees and vegetation continue to block the view.

Stop work whenever a total of 15% of the live foliage has been removed from all pruning operations. Do no further work on the tree until the next pruning cycle.

4. For Tree 2 use reduction and thinning cuts to maintain the height of the canopy. Use thinning cuts to reduce the density of the canopy. Stop work whenever a total of 15% of the live foliage has been removed from all pruning operations. Do no further work on the tree until the next pruning cycle.

5. For Tree 3 use reduction and thinning cuts to continue to mimic the structure and shape of the two Torrey Pines growing on the Michaels property. Also use thinning cuts to reduce the density of the upper canopy. Stop work whenever a total of 15% of the live foliage has been removed from all pruning operations. Do no further work on the tree until the next pruning cycle.

The objective remains that with continued regular pruning this tree will become a skyline tree with framed views through the canopy.

7. The site shall be left in a clean condition and the debris shall be properly disposed of.

Note: Emergency pruning, such as for branch failures, can be performed at any time.
25 August 9, 2022 Item 01 1687 September 19, 2022 September 19, 2022 Item 12 Item 12 White Residential Property
View Restoration Plan
Wisniewski & Associates 22-1005
August 2, 2022
8 LIMITING CONDITIONS

1. Unless expressed otherwise: a) the information contained in this report covers only those items that were examined and reflects the condition of those items at the time of the evaluation, and b) the evaluation is limited to the visual observation of accessible items without dissection, excavation, probing, or coring.

2. There is no warranty or guarantee, expressed or implied, that problems or deficiencies with these trees or this property may not arise in the future.

3. There is no warranty or guarantee, expressed or implied, that problems or deficiencies with these trees or this property may not arise in the future.

Please contact me if you have any questions or require any additional information.

26 August 9, 2022 Item 01 1698 September 19, 2022 September 19, 2022 Item 12 Item 12 White Residential Property
View Restoration Plan
Wisniewski & Associates 22-1005
August 2, 2022
9 CONSULTING ARBORIST DISCLOSURE STATEMENT
A consulting arborist is an individual who utilizes specialized education, knowledge, training and experience to examine and evaluate trees. By utilizing a diagnostic model he makes recommendations for treatments and dosage to achieve desired objectives.

Recommendations to reduce risk and improve safety are of the highest priority. At times trees may be recommended for removal when they cannot reasonably be made safe, or potential targets such as people or property, cannot be relocated or eliminated. The client may choose to accept or disregard the consulting arborist's recommendation or to obtain additional advice.

The consulting arborist cannot identify every condition that may cause a structural failure of a tree or it's parts. Trees are dynamic organisms that interact with their environment in complex ways that are not fully understood. Many conditions located within trees, or below ground, cannot be fully evaluated. A consulting arborist cannot guarantee that a tree will be safe or healthy under all environmental conditions or for a specified period of time. Recommended treatments cannot be guaranteed.

The treatment, pruning or removal of trees, often involves factors beyond the scope of the consulting arborist's services. These factors can include, but are not limited to, concerns such as the following: property ownership, property boundary lines, disputes between neighbors and landlord tenant arrangements. A consulting arborist cannot take such factors into consideration without being provided complete and accurate information.

The property owner accepts full responsibility for authorizing the recommended treatments or remedial measures. The ability to manage trees is limited as they are living dynamic organisms constantly subjected to environmental stresses. All risks from trees cannot be eliminated. To live with and to work with trees is to accept a degree of risk. 27 August 9, 2022 Item 01 17069 September 19, 2022 September 19, 2022 Item 12 Item 12 White Residential Property
View Restoration Plan
Wisniewski & Associates 22-1005
August 2, 2022
10 PHOTOGRAPHS
28 August 9, 2022 Item 01 1710 September 19, 2022 September 19, 2022 Item 12 Item 12 White Residential Property
View Restoration Plan
Wisniewski & Associates 22-1005
August 2, 2022
11 Photo No. 1 - Tree 1 viewed from the Deftos deck. The yellow oval indicates area to be pruned to provide distant view. Blue jagged line is the desired +/-5' canopy reduction pruning line. 29 August 9, 2022 Item 01 1721 September 19, 2022 September 19, 2022 Item 12 Item 12 White Residential Property
View Restoration Plan
Wisniewski & Associates 22-1005
August 2, 2022
12 Photo No. 2 – View from Michaels’ Trees Nos. 1 - 5.
5 4
3 2
1 30 August 9, 2022 Item 01 1732 September 19, 2022 September 19, 2022 Item 12 Item 12 White Residential Property
View Restoration Plan
Wisniewski & Associates 22-1005
August 2, 2022
13 Photo No. 3 - Tree 3 appears to have been topped years ago with resulting numerous upright branches of similar size with foliage concentrated at the top of the canopy. The intention is to prune the tree so that over time it will have the appearance of the two trees in Photo No. 4. 31 August 9, 2022 Item 01 1743 September 19, 2022 September 19, 2022 Item 12 Item 12 White Residential Property
View Restoration Plan
Wisniewski & Associates 22-1005
August 2, 2022
14 Photo No. 4 - Two skyline Torrey Pines on the Michaels' property which frame distant views. 32 August 9, 2022 Item 01 1754 September 19, 2022 September 19, 2022 Item 12 Item 12 White Residential Property
View Restoration Plan
Wisniewski & Associates 22-1005
August 2, 2022
15 SAN DIEGO REGIONAL URBAN FORESTS COUNCIL

CLEARANCE STANDARDS FOR TREES

SAN DIEGO COUNTY, CALIFORNIA
2010

1. CLEARANCE STANDARDS

1.1. Purpose
It is the intention that all work be performed to improve public safety, reduce the spread of fire, provide required clearances, reduce the risk of tree failure, maintain or improve tree vigor and structure, or fulfill other specific requirements of the tree owner.

1.2 Application
The following standards shall apply to the pruning of all trees in San Diego County maintained as part of a landscaped setting. These standards are not intended to supersede any more stringent clearance requirements of any fire department or other governmental agencies having jurisdiction.

1.3 Additional Standards
Additional standards and practices that apply to the pruning of trees shall be the most recent edition of the following:

ANSI A-300 (Part 1), American National Standard for Tree Care Operations – Tree, Shrub, and Other Woody Plant Maintenance – Standard Practices (Pruning)
ANSI Z133.1, American National Standard for Arboricultural Operations – Safety Requirements
“Best Management Practices – Tree Pruning” published by the International Society of Arboriculture.

1.4 Clearance Standards
The following minimum clearances for tree canopies are to be achieved at the time of pruning.

1. streets, roads, fire lanes and the traveled way in parking lots: 14’ above the curb or edge of the traveled way.

2. driveways: 14’ overhead clearance and 16’ horizontal clearance (8’ from either side of the centerline of the driveway). Local agency requirements 33 August 9, 2022 Item 01 1765 September 19, 2022 September 19, 2022 Item 12 Item 12 White Residential Property
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Wisniewski & Associates 22-1005
August 2, 2022
16 may specify a greater horizontal clearance depending on the number of properties accessed by the driveway.

3. buildings and structures: 3’ from the sides and 5’ over the roof.

4. chimneys: 10’ from the side or above the outlets from chimneys or flue pipes.

1.4.5 safety signs, signals and informational road signs: Line of sight, as detailed in local codes or ordinances, shall not be obstructed by tree growth from a clear view by motor vehicle operators. This includes street name signs and property addresses.

1.4.6 vehicle traffic at intersections and turning lanes: Line of sight, as detailed in local codes or ordinances, shall not be obstructed by tree growth from a clear view by motor vehicle operators.

1.4.7 street lights and light poles: 5’ from the sides, above and below the light fixture and the pole supporting the fixture.

1.4.8 sidewalks, walkways and parking spaces in parking lots: 8’ above the paved surface.

2. PRUNING

2.1. Pruning Objectives
The objectives to be achieved include, but are not limited to clearance, risk reduction and structural improvement or correction.

2.2. Pruning Methods (types)
One or more of the following methods (types) shall be utilized to achieve the objectives: clean, raise, reduce or thin. Do not top any tree to achieve the clearance standards.

2.3. Work Included
Tree pruning shall include clearance pruning along with any other pruning specified or required to complete the work.

2.4. Inspection
“A visual hazard assessment, including a root collar inspection, shall be performed prior to climbing, entering, or performing any work in a tree.” (ANSI Z133.1-2006)
34 August 9, 2022 Item 01 1776 September 19, 2022 September 19, 2022 Item 12 Item 12 White Residential Property
View Restoration Plan
Wisniewski & Associates 22-1005
August 2, 2022
17 Report to the tree manager or tree owner, in writing, any unsafe or potentially hazardous condition. Also report if it was not possible to inspect the root collar due to obstructing plant material or soil.
35 August 9, 2022 Item 01 1787 September 19, 2022 September 19, 2022 Item 12 Item 12 White Residential Property
View Restoration Plan
Wisniewski & Associates 22-1005
August 2, 2022
18 SAN DIEGO REGIONAL URBAN FORESTS COUNCIL

CLEARANCE STANDARDS FOR TREES

SAN DIEGO COUNTY, CALIFORNIA
2010
The following people contributed to the development and review of the Clearance Standard for Trees – San Diego County, California 2010:

Danielle Campbell, Forestry Assistant, Resource Conservation District of Greater San Diego County
Tim Clancy, Consulting Arborist
Anne Fege, Co-coordinator San Diego Children and Nature Collaborative Delia B. Juncal, Public Works Inspector – Landscape, City of Oceanside Vince Mikulanis, Project Manager, Davey Resource Group
Mike Palat, Area Manager, West Coast Arborists, Inc., Chair of the San Diego Regional Urban Forests Council
Brooke Peterson, ACIP, Senior Associate, Design, Community & Environment Drew Potocki, Urban Forester, City of San Diego
Annette Saul, Parks and Landscape Supervisor, City of Santee Lynnette Short, Urban Forester – Southern Region, California Department of Forestry and Fire Protection, CAL FIRE
Mark Wisniewski, Landscape Architect & Consulting Arborist, Wisniewski & Associates
Adopted by the Executive Committee of the San Diego Regional Urban Forests Council on 12/01/10.
36 August 9, 2022 Item 01 1798 September 19, 2022 September 19, 2022 Item 12 Item 12 1 06/14/22
Appropriate restorative action for TSVS21-002 & TSVS21-003 following the planning commission determination that unreasonable obstruction has occurred.

TSVS21-002 applicant: Michael & Angelina Deftos
Tree owners: Harvey & Sheryl White
TSVS21-003 applicant: Harold & Carolyn Michaels
Tree owners: Harvey & Sheryl White
The restorative plan combines both actions since the same trees are involved.

Torrey Pine trees labeled 1 – 4
Criteria considered in determination:

At present, none of the parties or their arborists has identified any potential hazards from the subject trees.

All the subject trees are Torrey Pines.

Trimming these trees must be done quite prudently since they do not generate epicormic buds (which lie underneath the bark of a trunk, stem, or branch) shoots from which the tree will use to generate new growth.

Apparently trimming will not even stimulate the development of these buds as is quite common in other varieties of trees (i.e., Eucalyptus, which can be trimmed to its trunk and still generate new shoots to survive).

Healthy new growth generally occurs at the tips of branches. There must be enough residual green needles at the tip of a branch to sustain growth.

This limits the type of trimming that can be done, Topping, heading or crown reduction type trimming which removes the tips/ends of branches will not contribute to a healthy, aesthetic tree.
37 August 9, 2022 Item 01
Exhibit E
18079 September 19, 2022 September 19, 2022 Item 12 Item 12 2 Trimming should be done in the winter months for health of the tree. Giving the tree the maximum amount of time to heal from the trimming and avoid pests until the following winter.

Lacing appears to be the best trimming method for the Torrey Pine.

Drop crotch trimming can be done prudently.

The Torrey pine tree is a protected tree, to be preserved if possible.

The location of trees 2-4 is such that they are not of special appearance, design, or use for the tree owners’ property.

Tree #1 is special in appearance, design, and use for the tree owners’ property. The Whites’ house was designed to accommodate Tree #1 as per DRB approval of their architectural plans.

After reviewing the Robert Walton report (for applicants Deftos and Michaels) and the Ted Safford report (for tree-owners Whites) we, the Sub-Committee, recommend that Trees 2, 3, and 4 should be laced and prudently drop-crotch trimmed such that their canopies are reduced approximately 20% each.

Tree #1 we recommend be laced and prudently drop-crotch trimmed such that the canopy be reduced approximately 40%. Since this will result in a dramatic trimming, we also recommend that the tree owner consult with a qualified and licensed arborist in the implementation of the trimming plan for Tree #1 such that it remains healthy and aesthetically pleasing. The tree owner is required to submit such a plan to the Planning Commission within 2 months from, July 12, 2022, or the date in which the resolution is adopted, for our review.

As things stand now, both sides seem intent on a result 100% in their favor.

The Whites’ arborist, Mr. Safford, has not, in our view, submitted a plan for the requisite trimming. He has said only that the tree should not be reduced in any way. We wish to emphasize to the Whites that they have an option to save Tree #1 if they would present us with an arborist’s plan that complies with our above recommendation, that is, a plan for reducing the 38 August 9, 2022 Item 01 1810 September 19, 2022 September 19, 2022 Item 12 Item 12 3 tree’s canopy by 40%. Unless we receive from the Whites a plan to proceed with trimming Tree #1, as opposed to doing nothing, we may have little choice but to vote in favor of the plan submitted by Mr. Walton, in support of the Deftos’ desire to remove the tree completely -- a result we would not otherwise recommend.

We also recommend establishing a trimming maintenance program to be implemented every 2 years, such that the views above, below, and through the trees from the Deftos and Michaels properties are maintained or enhanced, based on the views attained after the first trimming, as recommended above.

We make these recommendations bearing in mind that our responsibility is two-fold: 1) to interpret and implement the applicable City of Del Mar ordinance (TSVS) so that preexisting views we deem to have been obstructed are, to a significant though not necessarily total extent, restored; and 2) in the process, make every effort actually to protect such trees as the City of Del Mar has designated as being protected, among others but especially, Torrey Pine trees.

Unfortunately, when disputes arise under the TSVS (Trees, Scenic Views, and Sunlight) ordinance, the commissioners are too often thrust into the unenviable position of having to make decisions that require the wisdom of Solomon, end up pleasing no one, and cost us endless aggravation with no corresponding benefit, neither to ourselves as civic-minded volunteers, nor to the City and its staff members, nor to the applicants and tree owners.

Far too often and far too eagerly, both sides to such disputes adopt adversarial positions that do more harm than good to everyone concerned.

We suggest that more neighborly good will and genuine effort by citizens to arrive at mutual accommodation and compromise on their own, rather than relying on the commissioners to achieve the impossible in our decisions, is not only in order, but increasingly overdue in Del Mar.

The actual protection of trees specified as protected enhances the lives of all residents of and visitors to our city, resulting in a highly beneficial and uniquely characteristic “urban forest” aesthetic. For more than 60 years, the protection of designated trees has not only advanced sound ecological 39 August 9, 2022 Item 01 1821 September 19, 2022 September 19, 2022 Item 12 Item 12 4 practices in the city, but also greatly increased property values in Del Mar.

We wish to emphasize that flourishing trees – especially protected species such as Torrey Pine and Monterrey Cypress – not just totally unobstructed ocean views, are an important part of what makes Del Mar so desirable a community in which to live.

In short, to the extent that we deplete our urban forest, we do so at our peril – climatically, ecologically, aesthetically, and financially. To the extent that any of us in Del Mar place our own, narrow financial interests above the interests of the community as a whole, we very clearly risk “killing the goose that laid the golden egg.”
Respectfully submitted,
Del Mar Planning Commission Sub-committee:

Ted Bakker & John Farrell
40 August 9, 2022 Item 01 1832 September 19, 2022 September 19, 2022 Item 12 Item 12 Planning Commissioners,
We fully support the view restoration plan formulated by the City-approved arborist, Robert Walton, including the plan for both our property and the Michaels’ property. The comprehensive plan includes removal of tree #1, crown reduction of trees #2 and #3 to the level of bushes at the canyon rim, and crown reduction of trees #4 and #5 by 8 feet. This plan will restore our view. It will restore and preserve the views of other neighbors. It is supported by multiple neighbors. It is consistent with the purpose and provisions of the TSVS Ordinance. It reflects equitable weighing of the burdens and benefits of the trees. It will resolve our conflict for the foreseeable future. It will restore and preserve valuable scenic resources for the City.

Removal of tree #1 is necessary to substantially restore our view. The tree has a very wide breadth across our scenic view, forming a “green wall.” Other options for this tree will not reasonably or substantially restore our view or are not feasible. A lacing plan will take years to minimally restore our view (which has already been obstructed for numerous years), will promote view blockage from other properties on Torrey Pines Terrace as the tree grows taller, and may lead to ongoing conflict regarding yearly trimming. Lowering the height of this tree is not feasible due to the removal of green growth tips from the lower portion of the tree. The entire plan will allow the Whites to keep 4 of their 5 Torrey pine trees. Replacement plantings can be ordered as part of the resolution if preservation of Torrey pine trees in this location is desired.

We are also willing to include as part of the resolution the planting of a hedge at our property border to give the Whites privacy to the back of their house, which the tree currently does not provide. All of this will come at a substantial cost to us. We think this is an appropriate and equitable solution to resolve this conflict.

Comprehensive View Restoration Plan:
41 August 9, 2022 Item 01
Exhibit F
1843 September 19, 2022 September 19, 2022 Item 12 Item 12 View Restoration for Deftos Property:

Thank you for your time and consideration,
Michael and Angela Deftos
42 August 9, 2022 Item 01 1854 September 19, 2022 September 19, 2022 Item 12 Item 12 1 Michael and Angela Deftos
225 Torrey Pines Terrace
Restorative Action Plan Hearing for TSVS21-002
Summary
At our December 7th, 2021 hearing, the Planning Commission made a unanimous finding that our primary scenic view is unreasonably obstructed by three Torrey pine trees growing on the Whites’ property and “that the view blockage is extensive.” This finding grants us the right to “seek restoration and preservation of our view.” To restore our view, a neutral “City-approved” arborist hired following directions from the City recommended a view restoration plan involving removal of tree #1 and crown reduction of trees #2 and #3. An alternative proposal was subsequently solicited by the Planning Commission subcommittee and submitted by the Whites’ hand-picked arborist. This alternative proposal is not a view restoration plan and should be rejected. Instead, it is a plan to “enhance” our view by minimally thinning the trees and then waiting for the trees to grow. Thinning the trees will do nothing to restore our view and the trees will grow on their own without any action imposed by the City. Due to the way the trees have been improperly maintained by the Whites, removal of tree #1 and crown reduction of trees #2 and #3, as recommended by the neutral “City-approved” arborist, is the only feasible way to substantially restore our view. This plan is consistent with the purpose of the TSVS Ordinance and application of its provisions to the facts of our case. It provides an equitable resolution to our conflict when weighing the burdens and benefits of the trees. It is supported by the reasoning of a recent California State Superior Court decision regarding view obstruction upheld by the Court of Appeal. Adoption of a view restoration plan such as the Whites’ proposal that does not take action to substantially restore our view would deprive us of our established right to view restoration and is inconsistent with the intent of the Ordinance. Adoption of the proposal from the Whites’ hand-picked arborist rather than the view restoration plan from the “City-approved” arborist would also be inconsistent with a neutral and objective decision-making process. 43 August 9, 2022 Item 01 1865 September 19, 2022 September 19, 2022 Item 12 Item 12 2 1. The TSVS Ordinance
The stated purpose of the TSVS Ordinance “is to acknowledge the benefits derived from Trees, Scenic Views and plentiful Sunlight and to balance the goal of maintaining each of them when possible” [DMMC 23.51.010.E]. When scenic views are unreasonably obstructed, it gives homeowners the right to restore these views. Similar “view protection ordinances” have been established in other cities within California, such as in San Francisco and Tiburon, and outside California, such as in the Town of Clyde Hill in Washington State. While these ordinances have different processes, they all share the purpose of creating rights for homeowners to their scenic views that would not otherwise exist under common law. In enacting the TSVS Ordinance, the City of Del Mar recognized the value of scenic views to both property owners, the community, and the City, and provided a legal framework to enable their protection and restoration.

View ordinances recognize the value of both scenic views and trees. To balance these competing interests, the ordinances instruct quasi-judicial bodies (e.g. Planning Commissions or City Councils) or judicial bodies (i.e. civil court) to weigh the burdens and benefits of the trees to the applicant, the tree owner, and community in determining whether views are unreasonably obstructed and, if so, decide what action should be taken to restore them.

Del Mar’s TSVS Ordinance instructs the Planning Commission to hold a quasi-judicial hearing with evidence presented by the applicant and tree owners and Planning Commissioners acting as judges to apply the Ordinance to the facts of the case to determine whether a view is unreasonably obstructed and, if so, what action should be taken to restore it. This is guided by application of “Standards for Determining Unreasonable Obstruction” [DMMC 23.51.050] and “Criteria for Determining Appropriate Restorative Action” [DMMC23.51.060] specified by the Ordinance.

2. Established Right To View Restoration
On December 7th, 2021, the Planning Commission applied the TSVS Ordinance to the facts of our case and made a unanimous (4-0-1) finding that our primary scenic view is unreasonably obstructed by three Torrey pine trees growing on the Whites’ property. It was emphasized that the degree of view blockage is extensive. These same three trees plus two additional trees of the Whites were also unanimously found to extensively unreasonably obstruct the primary scenic view of our neighbors, the Michaels. According to the Ordinance, this finding 44 August 9, 2022 Item 01 1876 September 19, 2022 September 19, 2022 Item 12 Item 12 3 established our “right to seek restoration and preservation of (these) scenic views.” [DMMC

23.51.030A]

3. View Ordinances Intend View Restoration to be Substantial View ordinances generally specify a hierarchy of possible actions to restore views that have been unreasonably obstructed, ranging from trimming to tree removal. While there is a preference for the least aggressive action, the ordinances recognize that more aggressive action, including tree removal, is often necessary to restore views. Del Mar’s TSVS Ordinance states “tree removal may be considered when [other] restorative actions are judged to be ineffective” [DMMC 23.51.070.B.5].

Del Mar’s Ordinance does not explicitly state the degree of view restoration that should be granted; however, several lines of evidence support that it should be substantial. First, one can look to the legislative history of the Ordinance to help determine its intent. Del Mar’s TSVS Ordinance was modeled on ordinances from Tiburon, CA and Town of Clyde Hill, WA1. These ordinances also have similar language that establish the right to “preserve and seek restoration of views” or “seek to preserve and restore views.” Regarding the degree of view restoration that should be granted, The Town of Clyde Hill’s ordinance2 states that “Relief granted should substantially restore a view” [17.38.050.C.1]. Tiburon’s ordinance3 notes in discussion of trimming as a restorative action that “Trimming is the most minor form of physical restorative action. This option is recommended when minor unreasonable obstruction has occurred, provided that ongoing maintenance is guaranteed.” [15-8(d)]. Tiburon’s ordinance also notes that “Tree removal may be required where such removal is essential to preserve pre-existing views or sunlight. While normally considered a drastic measure, tree removal can be the preferred solution in many circumstances.” [15-8(g)]
Second, one can consider how judges have previously interpreted view ordinances. As discussed further below, in a recent civil court case (Kahn vs Price, case No. CGC-18-564579) with striking similarity to our case, a California Superior Court judge determined that tree 1 City of Del Mar Memorandum, May 6, 2002
2 https://www.codepublishing.com/WA/ClydeHill/html/ClydeHill17/ClydeHill1738.html 3 https://library.municode.com/ca/tiburon/codes/code_of_ordinances?nodeId=TITIVLAIMUS_CH15VISUOBTR 45 August 9, 2022 Item 01 1887 September 19, 2022 September 19, 2022 Item 12 Item 12 4 removal is more appropriate than a restorative action plan involving trimming to achieve partial view restoration after a period of time, and this decision was upheld by the California Court of Appeals (cases A159536 and A160057).

Third, in a case such as ours where the view is extensively unreasonably obstructed, less than substantial view restoration would leave the view still unreasonably obstructed.

Finally, one can refer to common sense. What is the point of having a view ordinance if it does not provide substantial restoration of unreasonably obstructed views?

4. View Restoration Plan from Robert Walton, a “City-approved” Arborist At our initial hearing, after the finding of extensive unreasonable view obstruction was made, the decision on appropriate restorative action was deferred to gather more evidence to inform this decision. It was decided that a neutral “City-approved” arborist should be consulted to help a subcommittee of the Planning Commission objectively formulate this restorative action plan. The intent of this was to have a neutral arborist the City could trust to derive the plan rather than rely on an arborist chosen by one of the parties.

We were subsequently (12/16/2021) given a list of three arborists “that City staff has worked with in the past” to choose from. One declined our request to evaluate the trees and another was “unable” to produce a report after evaluating the trees. The third arborist, Mr. Robert Walton, visited our house on 1/13/2022 and subsequently wrote a plan. In addition to being recommended by the City, Mr. Walton is a Registered Consulting Arborist with the American Society of Consulting Arborists and has worked in the San Diego area since 1978. His qualifications are impeccable.

During his visit, we showed Mr. Walton the online version of the TSVS Ordinance, told him that our view had been determined to be unreasonably obstructed by the three trees, and that we had been asked by the City to hire a “City-approved” arborist to come up with a view restoration and preservation plan. We also played him the video of our hearing where the possibility of periodic trimming to partially restore our view over time as the trees grow was discussed (approximately 1:26:45 to 1:30:12 of the archived video). These instructions were consistent with our understanding of the intent of the City to have a neutral arborist formulate a plan.
46 August 9, 2022 Item 01 1898 September 19, 2022 September 19, 2022 Item 12 Item 12 5 We received Mr. Walton’s view restoration and preservation plan on 1/24/2022 and promptly forwarded it to the City. Mr. Walton’s recommended view restoration plan includes removal of tree #1 and crown reduction of trees #2 and #3 to the level of Lemonade berry bushes on the canyon rim. He states that trimming (“lacing”) of tree #1 will “not reveal more of the lost scenery” and that only 5 feet of this tree could undergo crown reduction, which together with thinning of the remaining canopy, will “reveal more sky, [but] not reveal more of the lost scenery.” He notes that “This tree could easily have been maintained lower six to eight years ago” and that “The lower part of the tree has had the green (growing tips or apical meristems) stripped out, which makes pruning it lower not possible.” Based on this, Mr. Walton concludes that the only feasible option for tree #1 to substantially restore our view is tree removal. He states “the most reasonable solution to restore a reasonable view is to remove this particular tree.” We also note that his observations regarding prior maintenance of the trees further supports the finding that our view is unreasonably obstructed by both the growth and improper maintenance of the trees, as specified by the Ordinance.

5. Alternative Report from the Whites’ Hand-picked Arborist is Not a View Restoration Plan
After submission of Mr. Walton’s plan, we were told by City Staff that “the subcommittee has reviewed the restoration plans, but is not ready to recommend approval of them to the entire Planning Commission. Before they make a decision, they would like the Whites to provide input on the removal of tree #1.” We were also told that “the Whites did receive a copy of it, and it was discussed with them by the subcommittee.” The Whites subsequently hired an arborist, Ted Safford, to make an alternative proposal.

Of note, Mr. Safford was hand-picked by the Whites as their preferred arborist instead of being a “City-approved” arborist. He had recently been employed by the Whites to trim their trees to “enhance” our view (discussed further below) and previously wrote a report dated 9/26/2021 regarding trimming of the trees that was apparently the Whites’ only evidence submitted for the December 7th hearing. Allowing the Whites to hand-pick their own arborist to review and rebut Mr. Walton’s plan was not the protocol discussed at our initial hearing or in subsequent emails to us.
47 August 9, 2022 Item 01 19089 September 19, 2022 September 19, 2022 Item 12 Item 12 6 Mr. Safford’s proposal is not a view restoration plan and does not even claim to be one.

Instead, it is a plan to “enhance” our view by thinning the trees by 10% then waiting for the trees to grow. There is no mention of how much he thinks this plan will “enhance” our view or how long it will take. As documented with evidence below, the action of thinning the trees by 10% will do nothing to restore our view and waiting for the trees to grow is equivalent to doing nothing. Waiting for the trees to grow is not recognized as a restorative action in Del Mar’s TSVS Ordinance or any other view ordinance we are aware of. We are also not aware of any prior TSVS case in Del Mar where waiting for the trees to grow has been prescribed as the remedy.

Mr. Safford’s proposal is heavily biased by his personal opinion regarding the relative value of trees vs. views. His bias in favor of trees over views is clearly documented in his report when he dramatically states “I think it would be an environmental tragedy to remove any of these trees. Please spare me the task of discussing the intrinsic and extrinsic value of trees, let alone the iconic and protected species: Pinus torreana” and refers to the “trees beauty and dignity.” In addition, in an email Sheryl White sent to Carly Michaels on 9/13/2021, Sheryl references Mr.

Safford as being "not happy with people that are worried only about the view." Mr. Safford's personal opinion regarding the relative value of trees vs. views is irrelevant to the matter at hand, should not have informed his proposal, and should be entirely disregarded by the subcommittee. His job should have been to recommend in an unbiased and objective manner a plan to restore our extensively obstructed views. The bias and lack of objectivity in his report is consistent with him being selected as the Whites’ preferred arborist when he already had documented bias against people seeking view restoration. Adoption of the proposal from the Whites’ hand-picked arborist, rather than the view restoration plan from the “City-approved” arborist following direction from the City, would be inconsistent with a neutral and objective 48 August 9, 2022 Item 01 1910 September 19, 2022 September 19, 2022 Item 12 Item 12 7 decision-making process which we understood to be the intent of consulting with a “Cityapproved” arborist.

We also have evidence that Mr. Safford does not believe his view restoration plan will substantially restore our view. This is reflected in his choice of words that his plan will “enhance” our view rather than “restore our view.” When Mr. Safford visited our property on 3/16/2022, Carly Michaels kindly escorted him onto our property in our absence (his visit was unannounced). In contemporaneous text messages Carly sent us she stated “Hey he think the tree has to be removed…No kidding he just said to me while she’s not gonna like what I have to say but the only way to remedy this for your views to remove that tree.” In addition, we have photographic evidence that a 10% thinning of the trees will do nothing to restore our view. In February 2021, after our repeated requests, the Whites hired Mr.

Safford to trim their trees. According to Mr. Safford’s report dated September 26, 2021 (submitted into evidence by the Whites), the purpose of this trimming was to “enhance” our view and the Michaels’ view. The work involved thinning to reduce the density of the branching structure by 25%, which he said was the maximum possible to maintain the long-term health of the trees. Below are dated pictures showing the immediate effect of this trimming and the effect of regrowth after the trimming. This 25% thinning resulted in no significant improvement in our 49 August 9, 2022 Item 01 1921 September 19, 2022 September 19, 2022 Item 12 Item 12 8 view. The canopy is just as dense visually and there is minimal to no improvement in the view through the branches under the canopy. Due to the breadth and density of the tree's canopy, even a 25% thinning does not significantly restore our view. It is unreasonable to think that a 10% reduction will significantly restore our view. And any minimal improvement will be quickly reobstructed by regrowth of the canopy.

June 2020 (Before February 2021 Trimming March 2021 (After February 2021 Trimming) March 2022 (After regrowth)
We also have evidence that waiting for the tree to grow will not substantially restore our view in a reasonable period of time. We took the following pictures from our deck (essentially the same view as our primary view) and from our backyard, which is 8 feet lower. This approximates the effect of 8 feet of vertical growth of the trees, which would take an estimate of at least 6 to 8 years. This demonstrates that 8 vertical feet of growth of the trees will not substantially restore our view:
50 August 9, 2022 Item 01 1932 September 19, 2022 September 19, 2022 Item 12 Item 12 9 From Deck (January 2022) From Backyard (8 feet lower) (January 2022) Finally, we used a laser pointer with a horizontal level from various heights on our deck and roof to measure various distances on tree #1. This demonstrates that it would take 10-15 feet of growth for any substantial view restoration, which would still be significantly obstructed by numerous branches.

Measurement of tree #1 with laser pointer (January, 2022) 51 August 9, 2022 Item 01 1943 September 19, 2022 September 19, 2022 Item 12 Item 12 10 Based on the above, we think Mr. Safford’s plan should be rejected because it does not substantially restore our view, because it is clearly biased by a value judgment rather than based on objective analysis of how to restore our view within the context of the Ordinance, because there is evidence to support that Mr. Safford does not think his plan will substantially restore our view, and because we have evidence that it will not substantially restore our view.

In what follows we present reasoning that instead strongly supports approval of Mr.

Walton’s view restoration plan, including removal of tree #1 and crown reduction of trees #2 and #3. This plan is the only feasible way to substantially restore our view, follows directly from straightforward application of the Ordinance to the facts of our case, provides an equitable resolution to our conflict when weighing the burdens and benefits of the trees, and is supported by the reasoning of a judge in a recent California State Superior Court civil case regarding view obstruction upheld by the California Court of Appeals.

6. A Specific Intent of the Carmel Valley Precise Plan is to Preserve Scenic Views from Torrey Pines Terrace
The view we are seeking to restore is very high-quality. It encompasses numerous iconic features of San Diego County (La Jolla, Torrey Pines State Beach, Torrey Pines State Reserve, the Pacific Ocean, Los Peñasquitos Lagoon, and Soledad Canyon), and is largely unencumbered by houses or structures. The view is seen from only a few other properties in the City, increasing its value and making it an important resource for the City.

The three trees extensively obstruct this view, particularly tree #1, which has a very wide breadth across our view. Trees #2 and #3 are layered behind the far eastern portion of tree #1 and contribute further to the view obstruction. A view restoration plan that does not adequately address the view obstruction caused by tree #1 will not substantially restore our view. 52 August 9, 2022 Item 01 1954 September 19, 2022 September 19, 2022 Item 12 Item 12 11 Obstructed View Restored View (Photoshop)
The trees and tree owner’s property are located within the Carmel Valley Precise Plan (CVPP) area. The CVPP4 was adopted in 1980 to govern re-subdivision and development of approximately 15 acres of land located south of existing homes on Torrey Pines Terrace.

Preservation of scenic views from existing homes and future building sites on Torrey Pines Terrace was one of the specific aims of the CVPP. The CVPP Environmental Impact Report (CVPP EIR)5, which helped guide development of the CVPP, identified several “specific 4 https://www.delmar.ca.us/DocumentCenter/View/245/Carmel-Valley-Precise-Plan?bidId= 5 https://www.delmar.ca.us/DocumentCenter/View/5848/Carmel-Valley-Precise-Plan-EIR 53 August 9, 2022 Item 01 1965 September 19, 2022 September 19, 2022 Item 12 Item 12 12 areas of concern” for development of the area, one of which was “Scenic Amenities and Views.” In reference to the “Existing Conditions” of these views, the report notes:

Several existing homes and future building sites along Torrey Pines Terrace currently have access to open views across the study area to the south and west.

In addition, the three existing residences along the south extension of Ocean View Avenue have open views to the south and west. View corridors possessed by existing residences and building sites represent an environmental resource of considerable value to those properties. (CVPP EIR page 27-29) In analyzing potential “Impacts” of the CVPP to these scenic amenities and views, the report notes:

As compared to existing building sites and zoning ordinance, the proposed Precise Plan would have a significantly reduced impact on scenic amenity and view corridor resources. The proposed Plan -- through a resubdivision of the study area -- would reduce unit density on visible portions of the area, and impose permanent covenants and restrictions governing architectural and landscape standards which are specifically intended to protect visual amenities. (CVPP EIR page 29)
The report further outlined measures (mitigations) in the CVPP that lessened impact of development on scenic amenities and view corridors:

The proposed Precise Plan incorporates provisions which would serve as an effective means of mitigating potential adverse impacts to visual amenities and views. The finalized version of the Plan should make specific provisions for (1) landscaping and unit design; (2) unit heights, placement and retention of view corridors; (3) limitation to grading and topographic modification (CVPP EIR page 31).

The CVPP EIR thus clearly indicates that specific provisions in the CVPP were included with the specific intent of preserving scenic views from the CVPP area and adjacent areas, including existing and future homes on Torrey Pines Terrace (including our home, which existed at the time). These specific provisions included landscape height limitations, restrictions on where landscaping was allowed, building height restrictions, reduced unit density, strategic location of developable areas in lots, and creation of Open Space Areas upon which no structures could be erected.
54 August 9, 2022 Item 01 1976 September 19, 2022 September 19, 2022 Item 12 Item 12 13 A recent staff report from the Department of Planning and Community Development for a code enforcement case (CE19-040) recognized the intent of the landscape and building provisions in the CVPP:

The EIR identified mitigations incorporated into the CVPP to mitigate these potential adverse impacts to visual amenities and views with specific provisions for landscaping and unit design; unit heights, placement and retention of view corridors and that landscaping should emphasize native shrubs and trees.

The CVPP Land Use and Open Space Requirements, Section 8(c) setting maximum allowed heights for tree species…responds to this visual quality and views (aesthetics) mitigation.

There are no other areas in the City of Del Mar with similar architectural and landscape standards specifically intended to preserve scenic views. That these standards are exclusive to the CVPP area clearly indicates the City sees “elevated” value in scenic views from Torrey Pines Terrace such that they are worthy of specific protection. This point is important to keep in mind when considering the City Staff’s assertion that Torrey pine trees in the CVVP should be considered to have “elevated” value in the context of the TSVS Ordinance’s “Value of the Subject Tree(s) to the Community/Neighborhood” Criteria for Determining Appropriate Restorative Action, as discussed below.

7. DMCC 23.51 Criteria for Determining Appropriate Restorative Action The TSVS Ordinance lists eleven “Criteria for Determining Appropriate Restorative Action” that “shall be considered” in formulating an appropriate restorative action plan [DMMC

23.51.060]. According to the Ordinance, these are unweighted criteria: none is more important than another. The following is our analysis of these factors in relation to the trees, particularly tree #1, which obstructs the majority of our view:

Criteria A: Hazards posed by Tree to the applicant: None Criteria B: Variety of Tree, projected rate of growth, maintenance requirements: Torrey pine trees grow approximately 1 to 2 feet per year, with faster growth promoted by artificial irrigation and locations in canyons that trap moisture. This favors an aggressive restorative action plan as it would make a conservative action plan less effective: rapid growth after trimming would re55 August 9, 2022 Item 01 1987 September 19, 2022 September 19, 2022 Item 12 Item 12 14 obstruct our view and require frequent re-trimming. Moreover, if continued vertical growth of the trees is allowed, the views of other neighbors will become obstructed, as supported by their emails submitted into evidence.

Criteria C: Aesthetic quality of the Tree: In our opinion, the trees have limited aesthetic value, particularly tree #1. To date, the Whites appear to have made no specific claim that they do. Tree #1 in particular has an unnatural form due to the way it has been maintained, resulting in essentially all of its green foliage in a broad, narrow band at the top, and only barren branches below this (“lion-tailed”). It does not contribute to the aesthetics/scenic amenities of the neighborhood since it is very minimally visible from public property and only significantly visible from private properties whose views it obstructs. The aesthetics of this tree will be further reduced by restorative action involving substantial trimming that would result in an even more unnatural form, and this unaesthetic tree would occupy the center of our scenic view.

Criteria D: Location of Tree with respect to appearance, design, use of Tree owner's property:

We think tree #1 contributes little to the appearance, design, or use of the Whites’ property, and to date the Whites appear to have made no claim that it does. The tree is located in their backyard and, due to the way it has been maintained, only the trunk and primary branches appear to be visible from inside their house. In addition, the location of such a large tree so close to their house has many disadvantages. The canopy overgrows the roof of the house and abuts vegetation on the canyon rim and adjacent property to the West, imposing a certain degree of fire hazard.

Torrey pines constantly shed needles and pinecones that need to be removed from the ground and roofs to mitigate fire hazard. The roots of Torrey pine trees can cause damage to irrigation pipes and building foundations. The proximity of the trees to the house likely stresses the trees due to crowding of their root structure. The Whites state in various emails that they have to constantly attend to the tree’s health, with a special arborist treating them for bark beetle infestation. Another tree located very close to their house reportedly fell down onto their house in a windstorm. Of the perhaps 20-30 people who have visited our property over the last few years and observed the Whites’ trees from our property, all have questioned why the Whites would want such a large tree in their backyard growing so close to their house.

Criteria E: Soil stability provided by Tree: No claim.

Criteria F: Privacy and wind screening provided by Tree: No claim.

Criteria: G Energy conservation and/or climate control provided by Tree: No claim 56 August 9, 2022 Item 01 1998 September 19, 2022 September 19, 2022 Item 12 Item 12 15 Criteria H: Wildlife habitat provided by Tree: No claim.

Criteria I: Whether the Subject Tree is a Protected Tree: Both the Trees Ordinance [DMMC

23.50] and the TSVS Ordinance [DMMC 23.51] allow for removal of protected Torrey pine trees that unreasonably obstruct scenic views. The TSVS Ordinance states that “Tree removal may be considered when the above-mentioned Restorative Actions are judged to be ineffective” [DMMC

23.51.070.B.5]. The Trees Ordinance states that a tree permit to remove Torrey pine trees “shall be issued” when “removal of the tree is the only feasible method available for restoration of the affected scenic view” [DMMC 23.50.080.C.7]. Implicit in these provisions is that when the City adopted the TSVS Ordinance, it envisioned a situation where removal of a Torrey pine tree to restore an unreasonably obstructed view would be justified. We think the extensive unreasonable obstruction of our high-quality scenic view and the high-quality scenic view of our neighbors, the Michaels, clearly rises to this level. If the combined obstruction of our collective view does not rise to this level, what type of view obstruction did the City envision when it allowed removal of Torrey pine trees in the TSVS and Trees Ordinances? We also note that removal of tree #1 could be accompanied by replacement plantings of Torrey pine tree(s), if that is deemed warranted by the City and/or desired by the Whites. Finally, we note that Del Mar frequently allows removal of Torrey pine trees for property development, such as the recent removal of six or seven mature Torrey pine trees down the street from us at 340 Ocean View Ave (DRB-13-19). We think the City should similarly not oppose removal of a single Torrey pine tree growing in the backyard of a house that is minimally visible from public property when it is necessary for restoration of the views from our existing properties, views that are recognized by the City as having “particular/elevated” value.

Criteria J: Value of the Subject Tree(s) to the Community/Neighborhood: The trees are a burden to much of the neighborhood of Torrey Pines Terrace. Six houses on the south side of Torrey Pines Terrace have similar high-quality views over the CVPP area. For two of these (Deftos and Michaels), this view has been found by the Planning Commission to be extensively unreasonably obstructed by the trees. These same trees also partially obstruct views of the Pacific Ocean from three more of these six houses (251, 279, 285 Torrey Pines Terrace), as demonstrated by photographs from these properties (see Appendix). The trees are also in a blue water view corridor for at least two houses on the north side of Torrey Pines Terrace (264, 280 Torrey Pine Terrace), as well as from the public street (see Appendix). If these trees continue to 57 August 9, 2022 Item 01 200 199 September 19, 2022 September 19, 2022 Item 12 Item 12 16 grow vertically, such as in Mr. Safford’s plan involving trimming, these views will become obstructed as well. That the trees are a burden to the neighborhood is evidenced by the emails in support of Mr. Walton’s plan we have received from our neighbors and submitted into evidence.

In contrast, to date, there is essentially no documented support in the record from the neighborhood for the Whites’ trees. Their only neighborhood support in our initial hearing was provided by their daughter in her testimony. She indicated that her parents frequently water the trees in addition to the ample water they receive from natural drainage, which likely contributed to their growth and our view obstruction.

We also respectfully disagree with Staff's opinion that the City intends Torrey pine trees in the CVPP area to be considered to have “elevated value” to the community/neighborhood in the context of the TSVS Ordinance. Staff’s support for this contention is based on the exemption of Torrey pine trees from the landscape height limitation in the CVPP area, which they assert indicates these trees have “elevated/further value” in the CVPP area. Instead, we think there is a simple explanation for this exemption. According to the CVPP EIR, to mitigate adverse impacts to “Biologic Resources,” the CVPP recommended an emphasis on native shrubs and trees in landscaped areas, including Torrey pine trees. Were Torrey pines trees not exempt from the landscape height limitation, they would be prohibited from being planted due to their expected height at maturity. Therefore, to help promote native species, Torrey pines were exempted from the landscape height limitation. Emphasis of native species such as Torrey pines does not translate into an elevated value of Torrey pines in the CVPP area in the context of the TSVS Ordinance. Torrey pine trees in the CVPP area are subject to the TSVS Ordinance without qualifications.

Indeed, as we noted above, there is a stronger argument that scenic views from the CVPP and adjacent areas are considered by the City to have “elevated value”: this is the only area in the City where scenic views are protected by the City with specific and explicitly stated intent by landscape and building standards incorporated into City ordinance (the CVVP). It is not clear to us why City Staff did not draw attention to this in their Staff Report and instead asserted their opinion that Torrey pine trees in the CVPP have “elevated value.” Regardless of the reason, we are concerned that this biased the Planning Commission against tree removal. Indeed, an email from City Staff to us indicated that Staff’s opinion that Torrey pine trees in the CVPP have 58 August 9, 2022 Item 01 2010 September 19, 2022 September 19, 2022 Item 12 Item 12 17 elevated value may “impact the Planning Commission’s consideration of how restorative action should be applied if the view obstruction be determined to be unreasonable.” Finally, to the best of our knowledge, the assertion that Torrey pine trees in the CVPP have “elevated value” has no precedent. To the best of our knowledge, this is the first time this has been asserted.

We also point out that tree #1 of our application does not significantly contribute to the scenic amenities to the CVPP area from outside it. This tree is almost entirely hidden behind the Whites’ house and is minimally visible from outside the CVPP area, as demonstrated in the photo below and other photos we previously submitted.
59 August 9, 2022 Item 01 2021 September 19, 2022 September 19, 2022 Item 12 Item 12 18 Based on the above, we think the burdens of the trees outweigh their benefits to the neighborhood/community.

Criteria K: Tree located on public right-of-way or City-owned property: No Summary of Criteria for Determining Appropriate Restorative Action:

Overall, we think that evaluation of the unweighted Criteria for Determining Appropriate Restorative in relation to submitted evidence favors aggressive action. We believe there are 9 factors that favor of aggressive action and only 2 factors that favor of conservative action:
60 August 9, 2022 Item 01 2032 September 19, 2022 September 19, 2022 Item 12 Item 12 19 8. Weighing of the Burdens and Benefits of the Trees We think a restorative action plan that preserves tree #1 at the expense of substantial restoration of our view does not appropriately balance the burdens and benefits of the trees. This is reflected in the above tabulation of the Ordinance’s Criteria for Determining Appropriate Restorative Action. It is also supported by a straightforward analysis of the burdens and benefits of the trees. The trees impose a great burden on us and have for years. The scenic view we lost contributed greatly to the economic value and enjoyment of our property. The trees also burden our neighbors by blocking their views, particularly the Michaels, but also other neighbors as well. If they grow taller, they will block additional views from houses and public property on Torrey Pines Terrace. The trees additionally burden the entire neighborhood by reducing property values. They also burden the City by reducing property values and by destroying a valuable resource for the City (high-quality view properties). Failure to protect the scenic view of its residents by appropriately enforcing the TSVS Ordinance would make Del Mar a less desirable city for investment in view properties.

In contrast, the trees appear to confer relatively little benefit to the Whites. Indeed, to date, the Whites have not clearly articulated any relevant benefit they derived from the trees that is recognized by the TSVS Ordinance. Their only claim in their testimony (they did not submit a written statement for the first hearing) is that, when choosing where to live, “we decided on Del Mar because like not any other coastal city in San Diego County…it had these trees…it made it so desirable to us.” But affection for trees is not mentioned in the TSVS Ordinance as a Criteria for Determining Appropriate Restorative Action, or anywhere else. Along these lines, The Town of Clyde Hill’s view ordinance states that in determining relief which may be granted by the commission “the personal attachment of a party to particular trees or landscaping shall not be compelling” [CHMC 17.38.050.C.3]. We think similar limited consideration to general affection for the trees should be applied in our case.

Taken together, the overall burdens of the trees to us and the neighborhood are overwhelming, while their benefits to the Whites are unclaimed and limited at best. 61 August 9, 2022 Item 01 2043 September 19, 2022 September 19, 2022 Item 12 Item 12 20 9. Tree Removal is Supported by the Reasoning of a Judge in a Recent Civil Case (Kahn vs Price) Upheld at the Appellate Level
Tree removal to restore our view is supported by the reasoning of a judge in a recent civil case in California Superior Court6. This case, Kahn vs. Price (case CGC-18-564579), was decided on February 26, 2020. It was appealed and the trial judge’s ruling unanimously upheld by a three-judge appellate panel in the Court of Appeal of the State of California on September 22, 2021 (cases A159536 and A160057) 7,8.

The Kahn vs. Price case has striking similarities to our case. It involved a dispute in San Francisco over a scenic view obstructed by the growth of a tree on a neighbor's property. San Francisco has an ordinance similar to Del Mar’s TSVS Ordinance, the San Francisco Tree Dispute Resolution Ordinance9, that similarly weighs the benefits and burdens of the trees in determining whether a view is unreasonably obstructed and, if so, the appropriate restorative action. Rather than being initially decided by a quasi-judicial hearing by a Planning Commission or City Council, the San Francisco Ordinance gives applicants the right to file a civil case with resolution of the dispute by a trial judge. This case provides insight into how an impartial judge with expertise in resolving equity disputes might approach our case. 6 See attached pdf
7 https://www.courts.ca.gov/opinions/archive/A159536.PDF see pages 6-12; 27-33 8 https://www.sandiegouniontribune.com/news/california/story/2021-09-24/court-battle-endstree-dispute-in-pricey-san-francisco-area 9 https://codelibrary.amlegal.com/codes/san_francisco/latest/sf_publicworks/0-0-0-4287 62 August 9, 2022 Item 01 2054 September 19, 2022 September 19, 2022 Item 12 Item 12 21 The Kahn vs. Price case involved view obstruction by a Monterey pine growing in the backyard of the Price’s house. The tree obstructed scenic views of San Francisco, San Francisco Bay, southern Marin County, and Angel Island from the primary living areas of the Kahn’s house. The tree also obstructed the view from their neighbor (the Weil’s) property. Before filing their case in civil court, the Kahns made numerous requests over many years for the Prices to have the tree either removed or trimmed so it did not obstruct their view. The Prices largely ignored these requests and the tree grew to substantially obstruct the Kahn's scenic view.

Kahn obstructed view Deftos obstructed view
After hearing evidence, the trial judge weighed the burdens and benefits of the tree per the Ordinance. The burdens of the tree were the obstruction of the Kahn’s and another neighbor’s scenic view. The benefits of the tree were considered to be limited. It provided limited visual, auditory or wind screening, had “limited aesthetic value,” did not contribute to soil stability, and did not provide wildlife habitat. The burdens of the tree were considered to be overwhelming and the benefits minimal. Based on this, the trial judge found that “the burdens posed by the defendants’ tree outweigh the benefits and that restorative action is required.” The judge then evaluated the hierarchy of possible view restoration plans specified by the Ordinance. In evaluating these options, the judge noted that “The Ordinance expresses a preference for the least extreme solutions available that are possible, practical, and feasible to achieve the purposes of the Ordinance.” After evaluating the possible view restoration actions, the judge decided that the only feasible method to restore the view and resolve the conflict was 63 August 9, 2022 Item 01 2065 September 19, 2022 September 19, 2022 Item 12 Item 12 22 to order tree removal. The trial judge’s reasoning behind this decision was as follows, with quotes from the Statement of Decision:
i. No Action:

The Prices’ request that the remedy be left to them--pruning under their exclusive control--would not ameliorate the burdens I have identified. Mr. Price’s emails introduced in evidence and the Prices’ uncooperative response to the Kahn’s overtures demonstrate their hostility to Kahn and indifference to her situation.

The tree is a significant burden on not only Kahn’s home but also Weil’s property, and that burden will persist and likely increase if the court orders no action. On this record, I find that, left to their own decisions, the Prices would not accommodate Kahn’s or the Weil’s concerns. For those reasons, I reject their request for a determination of “no action.” (page 16, lines 10-17). ii. Trimming and Topping the Tree to the February 2019 Height:
“The Ordinance creates rights to views previously enjoyed by Kahn: unobstructed views of the Bay, Angel Island, and Marin County that are now obstructed by the tree. Periodic pruning as was performed in February 2019 does nothing to restore these protected views. [page 16, lines 20-24]
The tree (also) grows in the view corridor from the Weils’ home to the Golden Gate Bridge and surrounding waters. Annually, the tree grows to encroach on and obstruct those views. When the tree is trimmed, the views improve, although less so with each successive pruning. Within months, the tree grows again, creating a significant obstruction. Maintaining the tree at its February 2019 pruning level would continue to burden the Weils’ property. (Page 17, lines 4-9) iii. Trimming and Topping the Tree to the Height of the Prices’ Home:

Another option was to gradually reduce the tree’s height to the level of the Prices’ home and to thereby restore most of the views. At trial, I asked the arborist if the tree could be progressively reduced to such a degree that the view obstruction is eliminated. Leggitt and MacNair testified that the tree may not tolerate such a procedure; that it would render the tree even more susceptible to infestations; and that it would fundamentally alter the appearance of the tree. They also testified that--to maximize the chances of the tree’s survival--the trimming and topping could not be done at one time. Leggitt estimated that the pruning would take as long as eight years--depending on the tree’s response--before it could be reduced to the desired height and breadth. (page 17, lines 14-22) Had this approach been taken in 2012-2014, when the tree was smaller, it may have been feasible, but now, due to the tree’s size and structure, it is not an option. Nor, given their fractious history, could the parties agree on the desired 64 August 9, 2022 Item 01 2076 September 19, 2022 September 19, 2022 Item 12 Item 12 23 height for each pruning cycle. This compromise would not achieve either side’s objectives. It would take years to restore any semblance of the Kahn home’s views. And were that objective achieved, the Prices would lose what they claim to value about the tree: both its current aesthetic appearance and the partial screening of the upper flows of the Kahn home. [page 17-18, lines 23-2] The last factor is the potential impact of this decision on neighboring properties, which an equity court must also consider. Among the Ordinance’s purposes is the promotion of the “aesthetic and practical benefits” provided by the tree to “the entire community.” § 822(a)(4). The court’s judgment will limit other neighbor’s ability to seek restorative action: “A tree which has been the subject of restorative action under the terms of this ordinance is exempted for other property owner’s claims for a period of five years…” § 824(c)(8). The interests and rights of the parties’ neighbors are implicated by the court’s decision in this matter, and I considered those interests, too, in determining the appropriate restorative action. [page 18, lines 7-14]
Trimming the tree to the height of the Prices’ home poses insurmountable hurdles. To avoid cutting the tree so drastically as to threaten its survival, according to the experts, the pruning would have to occur over many years. And even that may contribute to the death of the tree. These parties who have been unable to communicate, much less agree, would be forced into decision-making at least annually. (page 18, lines 15-19)
iv. Tree Removal:

The sole option is removal, which, in light of my assessment of the relative burdens and benefits, is the restorative action which best achieves the Ordinance’s objectives. The Ordinance creates rights to view in favor of property owners. Kahn’s rights are, and for eight years have been, significantly burdened.

Removal of the tree is the only way to restore the view. The Ordinance also promotes “the aesthetic and practical benefits which trees provide for individuals and the entire community.” In evaluating the “benefits” of the tree as defined under the Ordinance, I found it has limited aesthetic value, and that would be diminished by the trimming necessary to restore even a portion of the historic views. Nor does the tree benefit the “entire community.” To the extent that the tree benefits the Prices, it does so by unreasonably burdening the Weils and Kahn [page 18 line 24 - page 19 line 5].

In fashioning this remedy I am mindful of the Ordinance’s purpose: “[t]o discourage ill-considered harm to, or destruction of, trees.”… Having considered the issues and alternatives over more than five months, my decision whether to remove the tree has been deliberate [page 19, lines 6-11].

Although not a specific factor specified in the Ordinance, sitting in equity, the court also finds removal to be appropriate because it will provide finality to the 65 August 9, 2022 Item 01 2087 September 19, 2022 September 19, 2022 Item 12 Item 12 24 parties. The alternative - trimming and topping - would have assured constant strife, with untold expenses to the parties…The Ordinance is not intended “to replace the peaceful, sensible, and just resolution of differences between neighbors acting in good faith.” But where, as here, seven years have been consumed by discord between the parties, judicial intervention is required.

Removal of the tree will end this dispute.” [page 19, lines 12-18] Based on this reasoning, the judge ordered removal of the tree. The basic principles guiding the judge’s decision to order tree removal were as follows: Weighing the benefits and burdens of the tree, the judge found that the burdens greatly outweigh the benefits, that the view was unreasonably obstructed, and that the Kahns had a right to restoration of their historic view.

Restorative actions other than tree removal that were considered were rejected because they 1) would not substantially restore the view in a reasonable period of time, 2) would burden other neighbors, and 3) would not provide finality to resolution of the conflict.

The trial judge’s decision was unanimously upheld by a three-judge panel in the California State Court of Appeal (footnote #7 above). The Appeals panel also rejected the tree owner's assertion that the tree must not be removed and instead retained and pruned in order to fulfill the interests of both the tree owner and applicant:

We also see no merit to the Prices’ arguments that tree removal was barred because “[a] tree must be given a feasible chance to survive if its owners so desire – and they do so desire in this case,” and the Ordinance “decrees delayed pruning of trees over time to fulfill the interests of both property owners and their neighbors seeking view restoration.” The Ordinance’s primary purpose is to create a mechanism to adjudicate the rights of any property owner “who wishes to alter or remove a tree on the property of another which creates an obstruction to his or her access to sunlight or view.” Kahn’s views from the main level of her residence remained continuously obstructed even after the trimming and thinning of the tree on a “delayed basis” (i.e. periodic pruning) done by the Prices. Thus it was clear that such periodic pruning would not be a feasible solution as it would never restore the obstructed views. (pages 31-32) Thus, the appeals court ruled that partial view restoration achieved by periodic pruning so the tree could be preserved was not consistent with the purpose of the Ordinance since it would not restore the obstructed view.
66 August 9, 2022 Item 01 2098 September 19, 2022 September 19, 2022 Item 12 Item 12 25 10. “Kahn-Analysis” of Possible View Restoration Plans for Our Case The Kahn vs. Price case is very similar to our case. We think similar reasoning should be applied to our case. The following is an application of such reasoning to possible restorative actions for tree #1, which is responsible for the vast majority of view obstruction from our primary living area.
i. Regular trimming over a number of years to open up views through the branches as the tree grows vertically
This plan was discussed by the Planning Commissioners at our initial hearing, although it was not clear without further evidence from a neutral arborist if it was feasible or reasonable.

This is essentially Mr. Safford’s proposal, which he claimed would “enhance” our view. Such a trimming plan was rejected by Mr. Walton since it would not restore our view.

In addition, we think trimming should be rejected for the following reasons:
1). By our measurements, it would take 10-15 years for tree #1 to grow sufficiently for significant restoration of our view through the branches below the canopy. This is on top of the years our view has already been obstructed. And our view would still be significantly obstructed at the culmination of this.
2) By allowing continued upward growth, the tree will increasingly obstruct the views from other neighbors and public property on Torrey Pines Terrace. Written testimony supporting this and opposing allowing further vertical growth of this tree has been provided in emails from our neighbors submitted into evidence.
3) This plan will likely promote ongoing conflict regarding the extent of yearly trimming. 4) This plan is primarily being considered because the way the trees have been previously maintained (with removal of green growing tips from the lower portion) and the Whites’ failure to take earlier substantial action has excluded the possibility of retaining the tree at a lower height to restore our view, as clearly pointed out in Mr. Walton's report. Our right to substantial view restoration should not be limited because of the Whites’ prior actions and inactions (improper tree maintenance).
5). The appeals court in the Kahn case determined that partial view restoration achieved over years in an effort to preserve the tree did not satisfy the purpose of the San Francisco 67 August 9, 2022 Item 01 21009 September 19, 2022 September 19, 2022 Item 12 Item 12 26 Ordinance. We similarly think partial restoration of our view achieved over many years does not satisfy the purpose of the TSVS Ordinance.
6) We again note that the Tiburon Ordinance notes that “Trimming is the most minor form of physical restorative action. This option is recommended when minor unreasonable obstruction has occurred, provided that ongoing maintenance is guaranteed.” The obstruction of our view is extensive, not minor. This should preclude trimming as the restorative action for our case.
7) Allowing trees to grow (to see under the canopy in time) is not an action plan and is equivalent to doing nothing. It is not one of the restorative actions listed in the Ordinance. ii. Crown reduction by 5 feet and thinning of the remaining canopy According to Mr. Walton, lowering tree#1 by 5 feet by crown reduction (the maximum crown reduction he thinks can be done) and thinning the remainder of the canopy by 50-60% will “reveal more sky, [but] not…more of the lost scenery.” While more substantial crown reduction would likely have been a possibility if growing tips were left on the lower branches, this is no longer a possibility due to the way the Whites have maintained the trees. Performed to the maximum extent now possible, crown reduction and thinning of the remainder of the canopy will not substantially restore our view. In addition, this plan would likely promote ongoing conflict regarding yearly maintenance.
iii. Tree Removal
Removal of tree #1 (together with crown reduction of trees #2 and #3) is the only feasible way to substantially restore our view. It is the recommendation of the neutral and objective “City-approved” arborist we were directed to consult. This plan will also restore and protect the views of other neighbors whose views are obstructed by the trees, or whose views will be obstructed if they continue to grow. It is consistent with the reasoning of the judge in the Kahn vs Price case that was upheld at the appellate level.

11. Comprehensive View Restoration Plan
The TSVS Ordinance prescribes that removal of trees “may be accompanied by replacement plantings of appropriate plant materials to restore the maximum level of benefits 68 August 9, 2022 Item 01 2110 September 19, 2022 September 19, 2022 Item 12 Item 12 27 lost due to tree removal” [DMMC 23.51.070.B.5]. Therefore, tree removal would not necessarily entail loss of a Torrey pine tree to the Whites, the neighborhood, the CVPP, or the City. A replacement tree could be properly maintained by an arborist going forward so as to not obstruct our view or our neighbors' views. It could be planted farther away from the house, possibly conferring benefit to the Whites. We would also be willing to plant and maintain a hedge at the southern edge of our property as part of the plan to give the Whites privacy to the back of their property. This entire plan would come at a very significant financial cost to us. We think it would provide a more than equitable solution to our conflict. The Whites would still have the Torrey pine trees they desire (4 of their 5 trees, plus one or more replacement trees, if desired).

We and the Michaels will have our extensively unreasonably obstructed high-quality views restored, and other neighbors will have their views restored and/or preserved going forward.

Conclusion
In conclusion, we strongly support the view restoration and preservation plan recommended by the “City-approved” arborist, Mr. Walton, including removal of tree #1 and crown reduction of trees #2 and #3. Adoption of a view restoration plan such as the Whites’ proposal that does not take action to substantially restore our view would deprive of our established right to view restoration and is inconsistent with the intent of the Ordinance. 69 August 9, 2022 Item 01 2121 September 19, 2022 September 19, 2022 Item 12 Item 12 28 Adoption of the proposal from the Whites’ chosen arborist rather than the view restoration plan from the “City-approved” arborist would be inconsistent with a neutral and objective decisionmaking process.

The following reasons support Mr. Walton’s view restoration plan, including removal of tree #1:

1. Mr. Walton was hired according to instructions from the City after discussion by the Planning Commission of the need to consult with a neutral “City-approved” arborist. His plan was formulated in an objective fashion and not influenced by bias regarding his opinion regarding the relative value of trees vs. views. Mr. Walton objectively determined that “the most reasonable way to restore a reasonable view is to remove this particular tree [tree #1].”

2. The alternative proposal from the Whites’ chosen arborist is not a view restoration plan and will not substantially restore our view. It is instead a tree preservation and view “enhancement” plan. It is clearly biased by Mr. Safford’s value judgment regarding the relative value of trees vs. views instead of being an objective analysis of how to restore our view within the context of the ordinance. There is evidence to support that Mr. Safford does not think his plan will substantially restore our view, and we have submitted evidence that his plan will not substantially restore our view. His plan is essentially to do nothing and wait for the trees to grow to “enhance” our view in the distant future. Adoption of the proposal by the Whites’ chosen arborist rather than the view restoration plan from the neutral and objective “City-approved” arborist would be inconsistent with a neutral and objective decision-making process.

3. We have an established right to restoration of our view. We have provided evidence supporting that the intent of the Ordinance is to provide substantial restoration of views that are unreasonably obstructed. Removal of tree #1 is the only feasible way to substantially restore our view. It is consistent with the purpose of the TSVS Ordinance and application of its Criteria for Determining Appropriate Restorative Action to the facts of our case.

4. Removal of tree #1 and crown reduction of trees #2 and #3 is consistent with equitable weighing of the burdens and benefits of the trees.
70 August 9, 2022 Item 01 2132 September 19, 2022 September 19, 2022 Item 12 Item 12 29 5. Removal of tree #1 is consistent with the reasoning of a California State Superior Court judge in the Kahn vs. Price case that was upheld by a three-judge panel at the appellate level.

6. Removal of tree #1 and crown reduction of trees #2 and #3 is consistent with recognition by the City of the “particular/elevated value” of our scenic view and the scenic view from other houses on Torrey Pines Terrace as reflected in the CVPP.

7. Removal of tree #1 will completely resolve the conflict regarding this tree, rather than promoting ongoing discord as a tree trimming plan would.

8. Removal of tree #1 and crown reduction of trees #2 and #3 will restore and preserve the views of other residents on Torrey Pines Terrace and is supported by the majority of its residents.

9. Removal of tree #1 and crown reduction of trees #2 and #3 benefits the entire neighborhood by helping retain property values.

10. Removal of tree #1 and crown reduction of trees #2 and #3 benefits the City by helping retain property values, preserving a valuable resource (views properties on Torrey Pines Terrace), and by affirming the City’s commitment to protecting the scenic views of its residents.

The TSVS Ordinance gives us a right to “seek restoration and preservation” of our view.

The legislative history of the Ordinance implies that our view of restoration should be “substantial.” Our view cannot be substantially restored without removal of tree #1 due to the way the tree has been maintained. The TSVS Ordinance allows for the ordering of tree removal “when (other) restorative actions are judged to be ineffective,” and this extends to Torrey pine trees. These conditions clearly apply to our case. Removal of tree #1 is the only way to substantially restore our view. To determine that our view is extensively unreasonably obstructed and then adopt a restorative action plan that does not substantially restore our view is inconsistent with the TSVS Ordinance. We do not believe you can fairly apply the Ordinance to the facts of our case and reject Mr. Walton's view restoration and preservation plan and instead adopt Mr. Safford’s plan. It is hard for us to imagine a more compelling case than ours for 71 August 9, 2022 Item 01 2143 September 19, 2022 September 19, 2022 Item 12 Item 12 30 warranting removal of a Torrey pine tree. If the view obstruction by this tree does not rise to the level of warranting removal of a Torrey pine tree, what type of view blockage do the Commissioners think was envisioned by the City as warranting removal of a Torrey pine tree when the TSVS Ordinance was adopted and tree removal included as an option? Finally, we ask the simple question: Do you think preservation of tree #1 is more important than restoring our primary scenic view and the scenic views of our neighbors? Thank you for your time and consideration in this matter, Michael and Angela Deftos
225 Torrey Pines Terrace
Del Mar
72 August 9, 2022 Item 01 2154 September 19, 2022 September 19, 2022 Item 12 Item 12 31 Appendix
Figure 1: Diagram of View Obstruction from Torrey Pines Terrace Figure 2: Photographs of View Obstruction and Potential View Obstruction from Torrey Pines Terrace
73 August 9, 2022 Item 01 2165 September 19, 2022 September 19, 2022 Item 12 Item 12 32 74 August 9, 2022 Item 01 2176 September 19, 2022 September 19, 2022 Item 12 Item 12 75 August 9, 2022 Item 01 2187 September 19, 2022 September 19, 2022 Item 12 Item 12 76 August 9, 2022 Item 01 2198 September 19, 2022 September 19, 2022 Item 12 Item 12 77 August 9, 2022 Item 01 22019 September 19, 2022 September 19, 2022 Item 12 Item 12 78 August 9, 2022 Item 01 2210 September 19, 2022 September 19, 2022 Item 12 Item 12 79 August 9, 2022 Item 01 2221 September 19, 2022 September 19, 2022 Item 12 Item 12 80 August 9, 2022 Item 01 2232 September 19, 2022 September 19, 2022 Item 12 Item 12 81 August 9, 2022 Item 01 2243 September 19, 2022 September 19, 2022 Item 12 Item 12 82 August 9, 2022 Item 01 2254 September 19, 2022 September 19, 2022 Item 12 Item 12 83 August 9, 2022 Item 01 2265 September 19, 2022 September 19, 2022 Item 12 Item 12 84 August 9, 2022 Item 01 2276 September 19, 2022 September 19, 2022 Item 12 Item 12 85 August 9, 2022 Item 01 2287 September 19, 2022 September 19, 2022 Item 12 Item 12 86 August 9, 2022 Item 01 2298 September 19, 2022 September 19, 2022 Item 12 Item 12 87 August 9, 2022 Item 01 23029 September 19, 2022 September 19, 2022 Item 12 Item 12 88 August 9, 2022 Item 01 2310 September 19, 2022 September 19, 2022 Item 12 Item 12 89 August 9, 2022 Item 01 2321 September 19, 2022 September 19, 2022 Item 12 Item 12 90 August 9, 2022 Item 01 2332 September 19, 2022 September 19, 2022 Item 12 Item 12 91 August 9, 2022 Item 01 2343 September 19, 2022 September 19, 2022 Item 12 Item 12 92 August 9, 2022 Item 01 2354 September 19, 2022 September 19, 2022 Item 12 Item 12 93 August 9, 2022 Item 01 2365 September 19, 2022 September 19, 2022 Item 12 Item 12 94 August 9, 2022 Item 01 2376 September 19, 2022 September 19, 2022 Item 12 Item 12 95 August 9, 2022 Item 01 2387 September 19, 2022 September 19, 2022 Item 12 Item 12 96 August 9, 2022 Item 01 2398 September 19, 2022 September 19, 2022 Item 12 Item 12 1 Filed 9/22/21
CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

LINDA KAHN,
Plaintiff and Respondent,
v.

KATHERINE PRICE et al.,
Defendants and
Appellants.

A159536

(City and County of San Francisco
Super. Ct. No. CGC18564579)

LINDA KAHN,
Plaintiff and Respondent,
v.

KATHERINE PRICE et al.,
Defendants and
Appellants;
WILLIAM S. WEISBERG et
al.,
A160057
(City and County of San Francisco
Super. Ct. No. CGC18564579)
* Pursuant to California Rules of Court, rules 8.1105(b) and

8.1110, this opinion is certified for publication with the exception of the following portions of the Discussion: Section II (Trial Court’s Order Directing Tree Removal) and Section III (Trial Court’s Imposition of Section 128.5 Sanctions).
97 August 9, 2022 Item 01 24039 September 19, 2022 September 19, 2022 Item 12 Item 12 2 Objectors and Appellants.

This lawsuit concerns the parties’ long-standing dispute concerning the presence of a Monterey pine tree (“the tree”) growing in the rear yard of the property owned by defendants and appellants Katherine and Richard Price (the Prices). The tree obstructs plaintiff and respondent Linda Kahn’s views of the San Francisco Bay and Marin County from the main level of her residence.

Kahn sought declaratory and injunctive relief available under the San Francisco Tree Dispute Resolution Ordinance (“Ordinance”; S.F.

Pub. Works Code, art. 16.1, §§ 820, et seq.
1), which creates “rights in
favor of private property owners” to restore their “views lost due to tree growth” on adjoining property. (Id., §§ 821, subd. (a)(1), 827.) Following a bench trial, the court entered an amended judgment in favor of Kahn, declaring her right to the restoration of the views that “are now obstructed by the Monterey pine tree” and directing the tree’s 1 On December 1, 2020, we granted the Prices’ request to take judicial notice of the Ordinance. San Francisco Tree Dispute Resolution Ordinance sections are hereafter referred to as “Ordinance section . . . .”
98 August 9, 2022 Item 01 2410 September 19, 2022 September 19, 2022 Item 12 Item 12 3 removal. The court also granted Kahn’s request for Code of Civil Procedure2 section 128.5 sanctions in the sum of $47,345.30, payable by the Prices and their trial counsel William S. Weisberg and the law firm of Weisberg & Miller, jointly and severally.

We see no merit to the Prices’ arguments that the lawsuit was barred by the statute of limitations, that dismissal is required for Kahn’s failure to comply with the Ordinance’s prelitigation procedures, or that the trial court erred in directing the tree’s removal. We also see no merit to the challenge by the Prices and their trial counsel to the award of sanctions against them. Accordingly, we affirm the amended judgment.3
2 All undesignated statutory references are to the Code of Civil Procedure.
3 The Prices filed a notice of appeal from a judgment filed December 2, 2019 (case No. A159536) and an amended notice of appeal from an amended judgment filed February 26, 2020, as well as separate February 25, 2020, orders awarding costs, attorney and expert fees, and sanctions in favor of Kahn (incorporated in the amended judgment), and a separate February 26, 2020, order denying their motion for sanctions against Kahn and her trial counsel (case No.

A160057). William S. Weisberg and the firm of Weisberg & Miller are named as additional appellants in the amended notice of appeal filed in case No. A160057. On the court’s own motion, we consolidated the appeals in case No. A159536 and case No. A160057 for purposes of oral argument and disposition.

The appeal from the February 26, 2020 order denying the Prices’ motion for sanctions against Kahn and her trial counsel is dismissed as no appeal lies from that order. (Wells Properties v. Popkin (1992) 9 Cal.App.4th 1053, 1055 [“denial of motion for sanctions is not a judgment and is therefore not appealable”; italics in original].) The appeals from the December 2, 2019 judgment and the February 25, 2020 orders awarding costs, attorney and expert fees, and sanctions in favor of Kahn, are dismissed as superseded by the appeal from the February 26, 2020 amended judgment. The issues raised on the dismissed appeals from the December 2, 2019 judgment and the 99 August 9, 2022 Item 01 2421 September 19, 2022 September 19, 2022 Item 12 Item 12 4 FACTUAL AND PROCEDURAL BACKGROUND
We set forth the underlying facts as found by the trial court and taken in part from its statement of decision. We present additional facts in our discussion of the issues.

A. Background
Kahn purchased a multi-story residence in San Francisco in 1976.
4 At the time, the residence had unobstructed views from the primary living areas located on the north side of the home on the main level as well as unobstructed views from the north-facing rooms on the second and third floors. The residence’s northerly and northwesterly views – of the San Francisco cityscape and Bay, the Golden Gate Bridge, Angel Island, and southern Marin County – remained unobstructed by any other vegetation or the tree until 2011.

In or about 1998, the Prices’ predecessors in interest (prior owners) purchased the multi-story residence on property that is down slope from and abuts Kahn’s property. The properties are separated by a structure (a retaining wall topped by a lattice fence) located 10 to 12 feet above ground level on the Kahn property; the tree is located at “the very rear” of the Prices’ backyard and is adjacent to the retaining wall.

When Kahn replaced the lattice fence atop the retaining wall in 2001, she saw the origins of the tree that likely had been growing from a “volunteer seedling” since approximately 1999. The tree appeared “hedge-like” and was “well below the height of the lattice fence.” By February 25, 2020 orders are considered on the appeal from the February 26, 2020 amended judgment. (Code Civ. Proc., § 906.) 4 Kahn originally purchased the residence together with her late husband Paul Kahn in 1976. At the time of this litigation the residence was owned by Kahn, individually and as Trustee of the Survivor’s Trust under the Paul and Linda Kahn Trust, dated November 7, 1995. 100 August 9, 2022 Item 01 2432 September 19, 2022 September 19, 2022 Item 12 Item 12 5 2007, the tree was beginning to grow above the lattice fence but did not obstruct Kahn’s views. However, by 2011 the tree was visible above the lattice fence at which time Kahn advised the prior owners that the tree was eclipsing her views. Kahn offered to pay for the removal of the tree, but instead the prior owners trimmed the tree.

In 2012, when Kahn learned the prior owners had sold the property to the Prices, Kahn contacted the Prices in writing and in person. The Prices, who were then living in Hong Kong and only visiting the San Francisco property occasionally, assured Kahn they would consult with their landscape architects about the tree. “In late 2016, when it appeared informal resolution was unlikely,” Kahn began the Ordinance’s prelitigation procedures5 by serving the Prices with a tree claim in early 20176 and the parties 5 Ordinance section 823 requires the parties to participate in prelitigation procedures of “initial reconciliation” (written and if possible, in person notice of dispute) and “Community Board” mediation. (Id., subd. (a), (b).) If the initial reconciliation fails and Community Board mediation is not elected or fails, “the complaining party must prepare a tree claim as defined in Section 822 (j), and provide a copy to the tree owner in order to pursue either binding arbitration or litigation. This process constitutes the filing of a tree claim.” (Id., subd. (c).) “In those cases where initial reconciliation fails and binding arbitration is not elected, civil action may be pursued by the complaining party for resolution of the sunlight access or view tree claim under the provisions of the Ordinance. The litigant must state in the complaint that arbitration was offered and not accepted.” (Id., subd. (d).)
6 The tree claim consisted of Kahn’s trial counsel’s letter entitled “Tree Claim by the Owner [At Specified Address].” In the body of the letter counsel explained the nature of the dispute as known and understood by Kahn. Kahn’s counsel attached to her letter a copy of the Ordinance and a copy of a January 22, 2017 five-page report prepared by Kahn’s expert arborist who testified at trial. 101 August 9, 2022 Item 01 2443 September 19, 2022 September 19, 2022 Item 12 Item 12 6 engaged in private mediation (in lieu of community board mediation under the Ordinance) in June 2017. When private mediation failed in late 2017, and the Prices declined to participate in arbitration, Kahn filed this lawsuit in early 2018 seeking declaratory and injunctive relief.

B. Trial Proceeding
At a bench trial held in June 2019, the court heard the testimony of the Prices, Kahn, Kahn’s relative, Kahn’s friend, and an immediate neighbor of Kahn and the Prices. The court also heard testimony of Kahn’s expert consulting arborist and the Prices’ expert consulting arborist, expert aerial photographer, expert geotechnical engineer, and real estate appraiser. The court considered extensive documentation including the parties’ written communications and photographs taken at various times and from various locations within and without the parties’ properties. Lastly, the court conducted an on-site inspection of the parties’ properties on June 19, at which time the parties and counsel were present.
7 The court found that since the purchase of her home in 1976 Kahn had “enjoyed” views (from all floors) of “the San Francisco cityscape, the Bay, the Golden Gate bridge, southern Marin County, and Angel Island” until 2011 when the tree began obstructing and 7 After the on-site inspection counsel put on the record that during the site inspection the participants viewed the Prices’ property from the three “levels” at the back of the house and the “outdoors,” and viewed Kahn’s property from the three levels of the house and the backyard.

The court specifically remarked that the “photographs” did not really “portray the circumstances given the difference in altitude between [the homes] and the relationship of the trees to the houses and the topography.”
102 August 9, 2022 Item 01 2454 September 19, 2022 September 19, 2022 Item 12 Item 12 7 ultimately “eclipsed” the views; but for the tree, Kahn’s residence would still have those unobstructed views. Under the heading, “Historic Evidence of Views,” the court specifically found: “Kahn, her [relative] and [her friend], both of whom regularly visited the Kahn home, testified to the northerly views over San Francisco, San Francisco Bay, southern Marin County, and Angel Island. The views were a principal factor in the Kahns’ decision to purchase the property. The testimony and historic photographs establish that, when the Kahns purchased their home, the ‘views,’ as defined in [Ordinance] Section 822(n), from the garden, terrace, dining room, and kitchen dining area – north facing rooms located on the main level – were unobstructed. Nor was the view obstructed from any of the north facing rooms on the upper two levels of the Kahn home. (Kahn home’s historic views). The evidence also establishes that the northerly and northwesterly views of the San Francisco cityscape, the Bay, the Golden Gate bridge, southern Marin County, and Angel Island remained unobstructed by the tree or any other vegetation until at least 2011.”
The trial court also considered the burdens and benefits of the tree pursuant to the Ordinance’s enumerated criteria and based upon the “testimonial and documentary evidence,” the court’s “personal inspection of the parties’ respective properties,” and “the written and oral arguments of counsel.”
Regarding the tree’s burdens, the court found that “the Kahn home had unobstructed views from the Golden Gate to Angel Island and, but for the tree, would still have that view. There are landmarks, vistas and other unique features, including the San Francisco Bay, Angel Island, and portions of southern Marin County which would be 103 August 9, 2022 Item 01 2465 September 19, 2022 September 19, 2022 Item 12 Item 12 8 visible from the first level of the Kahn home, in the dining room and the kitchen, as well as from the patio and rear garden, but are partially or completely eclipsed by the tree’s growth from 2011 to the present.” The court found credible the photographic methodology used by Kahn’s arborist who documented “the tree’s effect and estimated the obstructions to be 50-60% from the dining room, 90% from the kitchen table, 20-30% from the rear patio, and 30-40% of [the view] from the rear yard looking north to northeast.”
The court’s own observations during the site visit corroborated the arborist’s testimony. The court also found it was “only the tree – and not other factors – which obstruct the view and create the burdens listed in the Ordinance.” In sum, the court found “overwhelming” evidence that: “the tree’s rapid growth in both height and breadth obstructs the views of landmarks and vistas that could once be seen”; “[t]he degree of obstruction makes that burden significant and substantial”; and “there are no other factors contributing to the burden.”8
8 In 2017 the tree had an overall height of approximately 25 feet, but by the time of the June 2019 trial the tree was approaching approximately 30 to 32 feet in overall height and was approximately 10 to 12 feet above the lattice fence that sat atop the retaining wall separating the properties. Kahn’s arborist testified that other counties had ordinances that classified the Monterey pine tree as “undesirable,” because it was a fast growing, large stature tree, growing over three feet per year and reaching heights of 35 to 40 feet. At trial, Kahn’s arborist described the tree’s “current condition[]” as follows: When you were standing on the main level of Kahn’s residence, “you have at least 3 . . . to 5 feet above the fence before you start to have an obstruction of the Bay and distant hills” from the main level of Kahn’s residence.

Based on photographs of the tree taken from the second level of Kahn’s residence in February 2019, “the current views of the pine in that location, you can juxtaposition yourself below to show that,” at least in 104 August 9, 2022 Item 01 2476 September 19, 2022 September 19, 2022 Item 12 Item 12 9 Discussing the tree’s benefits, the trial court specifically found that “the tree’s vigor in this context and location is not a benefit.” In so concluding, the court explained that “Kahn raised concerns about the tree when it was young. Had [the Prices or their predecessors in interest] heeded her warning, when the tree was small, a skilled arborist . . . could have advised on pruning that would have maintained the unique features of the Monterey pine while limiting its intrusion on the Kahn home’s historic views. Instead the tree’s owners ignored her requests, while the tree grew rapidly. Then in a belated effort to ameliorate the complaint, the tree was subjected to repeated topping and trimming. The unfortunate result is the tree no longer has the visual qualities of a Monterey pine . . . . [¶] If the tree survives, unaffected by the beetles and pine-pitch canker, true to the species, it will become a very large stature tree. . . . [I]f the tree is pruned to mitigate the view-related burdens, given its growth-pattern, the effects of that pruning will be fleeting – demanding frequent attention. [The parties’ immediate neighbor] testified that the tree obstructs the views of the Golden Gate Bridge and surrounding waters from his home.

Even when the tree is pruned in a manner which improves – but does not restore – those views, due to rapid growth, the view obstruction recurs within a very short period of time.”
In evaluating the tree’s “aesthetics, a trait in the eye of the beholder,” the trial court found, “[u]nderstandably, that the Prices insisted that the tree’s role in their yard, and, indeed in their decision to purchase the home, is paramount. They extol its virtues in shading the 1970s, there was no view obstruction on the main level of Kahn’s residence.
105 August 9, 2022 Item 01 2487 September 19, 2022 September 19, 2022 Item 12 Item 12 10 their yard, providing a backdrop for their landscaping and assuring privacy for their family. While the court does not seek to substitute its artistic opinion for that of the homeowners, there are objective factors which cannot be ignored. The other landscaping in the Prices’ yard is dwarfed by the tree. While the other trees and plants are all proportional to one another, the looming Monterey pine is disproportionate to all the surrounding vegetation and looms ominously. [¶] The tree is located at the very rear of their yard and atop a steep slope, adjacent to the retaining wall and Kahn’s lattice fence. [The Prices’ arborist] testified that, given [the tree’s] distance from the Prices’ home, it does not provide shade to either the home or the outdoor areas where the family would be dining or socializing. . . .” On the issue of “soil stability provided by the tree,” the trial court found not credible the testimony of Prices’ geotechnical engineer who opined, “without any data, testing, or explanation – that removal of the tree would result in a ‘landslide’ affecting multiple properties.” Nor did the witness “distinguish whether the ‘landslide’ would occur regardless whether the stump and roots were removed at the time the tree is felled, or if they were allowed to remain. [Kahn’s arborist] testified that leaving the roots and stump to decompose – while planting woody vegetation which could take root while the [tree’s] roots decayed – would assure soil stability. Planting along the entire length of the retaining wall would provide additional stability as it is unlikely that the tree’s roots extend to the western edge of the yard.” The court found no evidence that soil stability had been an issue during the decades predating the tree, and, no evidence that the retaining wall’s stability depended on the tree. The court also found that, if the tree’s 106 August 9, 2022 Item 01 2498 September 19, 2022 September 19, 2022 Item 12 Item 12 11 roots contributed to the soil stability, it was at most a minor benefit and one which could be secured by leaving them in place after the tree was removed and added plantings.

The trial court did find the tree provided some visual screening for the yard and the children’s bedrooms in the Prices’ home, allowing for “minimal privacy,” but “any benefit of this screening is minor and insignificant.” In so concluding, the court found unpersuasive the Prices’ contention that the tree was critical to provide privacy from the Kahn residence. “The Price yard and living spaces are not visible from the main floor of the Kahn home, not because of the tree, but because of the difference in elevation and the retaining wall and fence separating the Kahn home and the Prices’ home. To the extent, the tree blocks views of the Prices’ home, it does so from only a portion of the upper floors of the Kahn home and therefore does not provide the ‘privacy’ the Prices’ claim to be essential. [¶] To the extent the Prices’ claimed need for privacy is sincere – rather than merely a justification for retaining the tree – the site visit provided evidence of the visibility of the Prices’ yard and children’s bedrooms from neighbors to the east, west, and south. The site inspection also demonstrated that the interior of the Prices’ home is visible on many sides.” “Neighbors in many homes – much closer than the Kahn home – can peer into the Price property, and yet the Prices have not installed window coverings to provide the privacy they claim to value.” The court’s own observations were “corroborated” by Kahn’s arborist’s “room-by-room analysis,” documented by photography from the yard and interior of the Prices’ home.
107 August 9, 2022 Item 01 25049 September 19, 2022 September 19, 2022 Item 12 Item 12 12 Having determined the tree’s burdens were “overwhelming” and “the benefits the tree confers to be minimal,” the court therefore concluded Kahn had met her burden of proving “the burdens posed by the tree outweighed the benefits and that restorative action is required.” In deciding the appropriate type of restorative action, the court evaluated the Ordinance’s “[a]ppropriate [r]estorative [a]ctions” of (i) no action, (ii) trimming, (iii) thinning, (iv) delayed trimming or thinning, (v) topping, or (vi) tree removal with possible replacement plantings. (Ord., § 824, subd. (c)(1).) The court explained its reasons for finding that the first five actions were not feasible and the sole action that best achieved the Ordinance’s objectives was removal of the tree, which we will later discuss in the analysis.

The court also explained its decisions regarding the
apportionment of costs between the parties. (Ord., § 825. 9) As to costs
9 Ordinance section 825, entitled “APPORTIONMENT OF
COSTS,” “[a]dded by Ord. 445-88, App. 9/28/88,” provides in pertinent part: “(b) Costs of Litigation. The complaining party shall pay 100 percent of both parties’ reasonable attorneys’ fees in the event that his or her claim is finally denied, or no action is ordered pursuant to Section 824(c). In all other cases the complaining party and the tree owner shall each pay his or her attorney’s fees. Court costs shall be allocated to the parties at the court’s discretion. [¶] (c) Costs of Restorative Actions. At any time during the procedure specified in this ordinance the parties may agree between themselves as to the allocation of the costs of the restorative action. If such an agreement is not reached, the following shall apply: [¶] (1) As to trees planted prior to the effective date of this ordinance the complaining party shall pay 100 percent of the costs of the initial restorative action. The complaining party shall pay the cost of subsequent restorative action as a result of the recurrence of the same obstruction. [¶] (2) As to trees planted subsequent to the effective date of this chapter [sic] the tree owner and the complaining party shall each be responsible for 50 108 August 9, 2022 Item 01 2510 September 19, 2022 September 19, 2022 Item 12 Item 12 13 for the restorative action of tree removal, the court found the tree was not present before September 28, 1988, the effective date of the Ordinance. Consequently, the court directed that the cost of tree removal (the court-ordered restorative action) was to be paid “in equal proportion by the parties.” As to litigation costs, the trial court found Kahn and the Prices were to pay their own attorney’s fees pursuant to Ordinance section 825, subdivision (b), but Kahn as the prevailing party was entitled to her costs as defined in the Code of Civil Procedure.

The trial court entered judgment on December 2, 2019, later amended on February 28, 2020, in favor of Kahn “on both the cause of action for declaratory relief and the cause of action for injunctive relief” under the Ordinance. The court declared Kahn was entitled to restoration of her obstructed views, and to that end, the Prices were directed to remove the tree “so that the stump is cut to grade and the roots remain intact” and the stump was to “be treated to ensure that it will not re-sprout.” The parties were to follow specific procedures in hiring a licensed, bonded, and insured tree-care company to perform and complete the tree removal. The Prices were directed to pay the tree removal company and provide Kahn with a copy of the paid invoice and proof of payment; within five court days of receipt of the paid invoice, Kahn was to pay one-half of the amount paid to the tree removal company as evidenced by the paid invoice. The Prices were granted the right to “plant replacements at their option and expense,” with the proviso that they “select species which, at maturity, will not percent of the costs of restorative action and subsequent recurrence of the same obstruction.” (Bolded language in original.)
109 August 9, 2022 Item 01 2521 September 19, 2022 September 19, 2022 Item 12 Item 12 14 interfere with the Kahn home’s historic views.” The amended judgment also included provisions awarding Kahn (1) $69,150.65 as costs (§ 1032 [prevailing party costs]; Ord., § 825, subd. (b) [court costs allocated at court’s discretion]), (2) $41,182.50 as attorney fees and expert fees (§ 2033.420 [expenses incurred in proving matters which a party to whom a request for admission was directed failed to admit]), and (3) $47,345.30 as section 128.5 sanctions, payable jointly and severally by the Prices and their trial counsel William S. Weisberg and the law firm of Weisberg & Miller.

Appellants’ timely appeal ensued. 10

DISCUSSION
I. Trial Court’s Rulings on Statute of Limitations,
Ordinance’s Prelitigation Procedures, and Laches
A. Relevant Facts
Before trial, the Prices sought to bifurcate the trial with phase one regarding their affirmative defense that the lawsuit was timebarred. While conceding the Ordinance contained no statute of limitations, the Prices asserted the applicable Code of Civil Procedure statute of limitations was three years for either a claim in the nature of a permanent nuisance or liability created by statute (§ 338, subds. (a), (b)), for which there were no exceptions. In opposition, Kahn argued, among other things, that her action sought abatement of a continuing nuisance for which no statute of limitations was applicable. The trial 10 While the Prices seek reversal of the amended judgment in its entirety, they do not specifically challenge the directive that the parties are to share the costs of tree removal. Nor do the Prices present any substantive arguments challenging the award of costs, attorney fees, and expert fees payable to Kahn.
110 August 9, 2022 Item 01 2532 September 19, 2022 September 19, 2022 Item 12 Item 12 15 court denied the bifurcation motion, informing the parties it would consider the statute of limitations issue at the conclusion of Kahn’s case in chief as allowed under section 631.8.11
At the close of Kahn’s case, the Prices filed a section 631.8 motion for judgment on two grounds: (1) Kahn had failed to comply with the Ordinance’s prelitigation procedural requirement of filing a tree claim that included “physical (i.e. visual) evidence” showing the existence of an unobstructed view from the main level of the residence before the growth of the tree, and the purported defect had not been remedied by the photographic and expert testimony presented by Kahn; and (2) the lawsuit was time-barred under section 338, subdivision (a).

The trial court denied the motion, specifically finding that Kahn had complied with the Ordinance’s procedures and her tree claim was sufficient to meet the Ordinance’s requirements. The court also found that, because the Ordinance required Kahn to comply with prelitigation procedures before filing her lawsuit, “under any reading of the statute of limitations,” “the complaint could not be filed until the prerequisites to litigation had been satisfied.” In its statement of decision, the court stated it had denied the section 631.8 motion for “the reasons stated on the record”; “[t]he Ordinance does not contain a statute of limitations”; and “[a]fter considering the pre-filing history, [the court] determined independently that Kahn met all pre-filing conditions and filed this case timely.”
11 Section 631.8, provides in pertinent part, that “[a]fter a party has completed his presentation of evidence in a trial by the court, the other party, without waiving his right to offer evidence in support of his defense or in rebuttal in the event the motion is not granted, may move for a judgment.” (Id., subd. (a).)
111 August 9, 2022 Item 01 2543 September 19, 2022 September 19, 2022 Item 12 Item 12 16 Prior to trial the Prices also sought to have the court rule on their contention that the lawsuit was barred by laches, which the court said it would also consider at the close of Kahn’s case pursuant to a section 631.8 motion for judgment. However, in their section 631.8 motion the Prices did not seek dismissal based on laches. Instead, at the conclusion of the case in its statement of decision the court found the lawsuit was not barred by laches based on a lack of evidence to support the defense. The court initially found Kahn had not delayed in asserting her rights. “In 2011, after a period of rapid growth, the tree significantly encroached into Kahn’s view and she contacted [the former property owners], and offered to pay to remove the tree. Instead [the former owners] trimmed the tree. When Kahn learned that the Prices purchased the property, she contacted them in writing and in person – the procedures the Ordinance mandates as prerequisites to initiating a civil action. [Ord., section] 823. [¶] The Prices’ responses to Kahn’s requests justified her reasonable belief that, as neighbors, they could resolve the issue amicably and informally. The Prices, who were living in Hong Kong, and only visiting the . . . property occasionally, assured her that they would consult with their landscape architects. In late 2016 when it appeared informal resolution was unlikely, Kahn acted expeditiously, serving a tree claim in early 2017 and then engaging in mediation. When the mediation failed in late 2017, and the Prices declined arbitration, Kahn filed this case in early 2018.

Kahn did not delay; she proceeded precisely as required by the Ordinance. [¶] There is no evidence that Kahn ‘acquiesced’ in the view obstruction. To the contrary, the Prices complain that she was insistent, persistent, and even aggressive in her efforts to remove the 112 August 9, 2022 Item 01 2554 September 19, 2022 September 19, 2022 Item 12 Item 12 17 view obstruction. [¶] Nor is there evidence that the time from the Prices’ ownership to trial was due to delay caused by Kahn or that it prejudiced the Prices. To the contrary, it is Kahn who has been affected as her view has been obstructed as these proceedings are prolonged.”
B. Analysis

1. Statute of Limitations
We undertake an independent examination when reviewing
whether a lawsuit is time-barred by any applicable statute of limitations. (William L. Lyon & Associates, Inc. v. Superior Court (2012) 204 Cal.App.4th 1294, 1304.) Moreover, “[i]f the decision of [the trial] court is correct on any theory of law applicable to the case, the judgment or order will be affirmed regardless of the correctness of the grounds upon which the court reached its conclusion.” (Estate of Beard (1999) 71 Cal.App.4th 753, 776; italics in original.) Having made our de novo review, we conclude the action was timely filed albeit for a reason different from those given by the trial court.12 While the Prices recognize the Ordinance does not provide for a statute of limitations, they contend the lawsuit is nonetheless timebarred by various statute of limitations provided for in the Code of Civil Procedure. However, we need not address these arguments as this lawsuit “meets the crucial test” for an action to abate a continuing nuisance for which any statute of limitations is inapplicable. (Aryeh v. 12 Accordingly, we do not separately address the Prices’ contention that the trial court made two “prejudicial errors of law” when it ruled that no statute of limitations applied because the Ordinance did not mention a limitations period, and Kahn filed this case timely because her delay in filing was due to her need to satisfy the Ordinance’s prelitigation procedures.
113 August 9, 2022 Item 01 2565 September 19, 2022 September 19, 2022 Item 12 Item 12 18 Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1197-1198 (Aryeh).)13 The Prices’ arguments challenging the application of the continuous nuisance doctrine are unavailing.

We initially reject the Prices’ argument that the continuous nuisance doctrine does not apply because “courts have generally declined to apply continuous accrual” rules to statutory causes of action. The Ordinance does not contain a statute of limitations and is otherwise silent as to an accrual date for a lawsuit after prelitigation procedures fail. In the analogous context of statutes, such silence “triggers a presumption in favor of permitting settled common law accrual rules to apply. ‘As a general rule, “[u]nless expressly provided, statutes should not be interpreted to alter the common law, and should be construed to avoid conflict with common law rules. [Citation.] ‘A statute will be construed in light of common law decisions, unless its language “ ‘clearly and unequivocally discloses an intention to depart from, alter, or abrogate the common-law rule concerning the particular subject matter . . . .’ . . . [Citations.]” [Citation.]’ ” ’ [Citation.]” (Aryeh, supra, 55 Cal.4th at p. 1193; see Carson Harbor Village, Ltd. v. City of Carson Mobilehome Park Rental Review Bd. (1999) 70 Cal.App.4th 281, 290 [“[w]e interpret ordinances by the same rules applicable to 13 We reject the Prices’ argument that Kahn “forfeited any right to rely” on the continuous nuisance doctrine by failing to properly raise the issue in the trial court. As we have noted, during the course of litigating the pretrial motion for bifurcation, Kahn’s opposition included a discussion that the continuous nuisance doctrine rendered any statute of limitations inapplicable. When the Prices later renewed their statute of limitations argument in support of their section 631.8 motion, Kahn chose not to submit additional written opposition, but her counsel argued, among other things, that any statute of limitations was rendered inapplicable by the continuous nuisance doctrine. 114 August 9, 2022 Item 01 2576 September 19, 2022 September 19, 2022 Item 12 Item 12 19 statutes”].) We thus may assume, in the absence of any specific provision in the Ordinance, that San Francisco intended the application of “the usual judicial rules governing accrual” to apply to a lawsuit filed under the Ordinance. (Aryeh, supra, at p. 1193.) In other words, the Ordinance is governed by common law accrual rules to the same extent as a statute. (Id. at p. 1196.)
We also reject the Prices’ arguments that the continuous nuisance doctrine cannot apply because they did not create a nuisance by having a tree on their property, California law does not impose nuisance liability for simple tree view obstruction, and the complaint does not allege a cause of action for nuisance. It is true that under California law a landowner has no common law right to an unobstructed view over adjoining property and therefore nuisance liability does not lie for a view obstruction as a matter of common law. (Eisen v. Tavangarian (2019) 36 Cal.App.5th 626, 635.) However, at issue is a property owner’s legal right to pursue a private action under the Ordinance, which was enacted under San Francisco’s police power to resolve tree view obstruction disputes between adjoining landowners. (See Kucera v. Lizza (1997) 59 Cal.App.4th 1141, 1148-1149 [Town of Tiburon View and Sunlight Obstruction from Trees Ordinance upheld as a proper exercise of police power; “ ‘[l]ocal government may . . . protect views . . . .’ through the regulation of tree planting or growth”]).

The Ordinance specifically allows a complaining property owner to seek an abatement (“restoration”) of a tree view “obstruction,” which falls within Civil Code section 3479’s broad definition of a “nuisance,” i.e., “an obstruction to the free use of property, so as to interfere with 115 August 9, 2022 Item 01 2587 September 19, 2022 September 19, 2022 Item 12 Item 12 20 the comfortable enjoyment of life or property.”14 We do not look at the label of the cause of action (violation of the Ordinance) or the failure to mention nuisance in the complaint, “but to the nature of the obligation allegedly breached.” (Aryeh, supra, 55 Cal.4th at p. 1200.) Here, a tree owner’s obligation under the Ordinance is based on a “nuisance theory” for “direct injury to [the complaining party’s] property,” i.e. view obstruction caused by a growing tree on adjoining property. (Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1136 (Mangini).) 14 The Civil Code also distinguishes between a public and private nuisance. A public nuisance is defined as “one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” (Civ. Code, § 3480.) A private nuisance is defined as “[e]very nuisance not included in the definition of the last section.” (Id., § 3481.) The statutory definitions incorporate “the fundamental principle that a private nuisance is a civil wrong based on disturbance of rights in land while a public nuisance is not dependent upon an interference of rights in land but upon an interference with the rights of the community at large.” (Venuto v.

Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 124 (Venuto).) While a public nuisance may be abated by any public body or officer authorized thereto by law, a private person may maintain an action for a public nuisance, if it is specifically injurious to himself, but not otherwise. (Civ. Code, §§ 3493, 3494.) If the nuisance may be considered both “private as well as a public one,” “there is no requirement that the plaintiff suffer damage different in kind from that suffered by the general public and he ‘does not lose his rights as a landowner merely because others suffer damage of the same kind, or even of the same degree.’ ” (Venuto, supra, at p. 124.) Here, the Ordinance is silent as to whether the tree view obstruction is to be considered either a public or private nuisance. Because this appeal does not require us to decide whether a lawsuit under the Ordinance is one in the nature of a public or private nuisance, we do not further address the issue.
116 August 9, 2022 Item 01 2598 September 19, 2022 September 19, 2022 Item 12 Item 12 21 We also reject the Prices’ contention that the continuous nuisance doctrine does not apply because the tree view obstruction was not a “continuing” nuisance, but rather “permanent” in nature. “Where a nuisance is of such character that it will presumably continue indefinitely it is considered permanent, and the limitations period runs from the time the nuisance is created. [Citation.] On the other hand, if the nuisance may be discontinued at any time it is considered continuing in character. [Citations.]” (Phillips v. City of Pasadena (1945) 27 Cal.2d 104, 107 (Phillips); see id. at p. 108 [where it appeared from complaint’s allegations that locked gate could be removed at any time, the appellate court could not say, as a matter of law, that the locked gate constituted permanent nuisance; “[i]f the nuisance was in fact continuing in character, the claim was filed within time”].) We have no difficulty in concluding that in this case the tree view obstruction constituted a continuous nuisance – “an encroachment which is not willful but unintentional, and which is abatable,” as the law presumes such an encroachment will not be permanently maintained. (Kafka v. Bozio (1923) 191 Cal. 746, 751; see Madani v.

Rabinowitz (2020) 45 Cal.App.5th 602, 608-609 [“the ‘ “crucial test of the permanency of a . . . nuisance is whether the . . . nuisance can be discontinued or abated” ’ ”; “[u]nder this test, sometimes referred to as the ‘abatability test’ [citation], a . . . nuisance is continuing if it ‘can be remedied at a reasonable cost by reasonable means’ ”].) As the trial court found, even though the former owners had pruned the tree, the tree continually grew and by 2011 had substantially obstructed Kahn’s views. The court specifically took note of the testimony of Kahn’s arborist, as well as other percipient witnesses, that even after the 117 August 9, 2022 Item 01 26059 September 19, 2022 September 19, 2022 Item 12 Item 12 22 latest pruning in February 2019 there was no change in the obstructed views from the first level of Kahn’s residence; and as explained by the arborist, “ ‘from the first level, [the pruning] opened up sky, none of the distant views.’ ”
Nor do we see any merit to the Prices’ related assertion that the lawsuit is barred because the “wrongdoing, causation and injury arising from view obstruction were complete no later than 2011.” “That is because the ‘continuing’ nature of the nuisance refers to the continuing damage caused by the offensive condition, not to the acts causing the offensive condition to occur.” (Mangini, supra, 230 Cal.App.3d at p. 1147.) “Every repetition of a continuous nuisance is a separate wrong for which the person injured may bring successive actions . . . until the nuisance is abated, even though an action based on the original wrong may be barred.” (Phillips, supra, 27 Cal.2d at pp. 107-108; see also Civ.

Code, § 3483 [“[e]very successive owner of property who neglects to abate a continuing nuisance upon, or in the use of such property, created by the former owner, is liable therefor in the same manner as the one who first created it”].)
Lastly, we are not persuaded by the Prices’ argument that the application of the continuous nuisance doctrine will lead to inequitable results. Because the Ordinance is not “meant to replace the peaceful, sensible, and just resolution of differences between neighbors acting in good faith” (Ord., § 821, subd. (c)), its apportionment of costs appears to provide sufficient motivation for reasonable adjoining property owners to resolve their disputes without litigation. If a delay in bringing an action to restore obstructed views unreasonably impacts the rights of the tree owner, as the Prices contend, the court can handle that 118 August 9, 2022 Item 01 2610 September 19, 2022 September 19, 2022 Item 12 Item 12 23 circumstance under the equitable doctrine of laches.15 As we have noted, the trial court rejected the Prices’ request to dismiss the lawsuit based on laches, and they have not challenged that ruling on this appeal.

In sum, we conclude Kahn’s lawsuit was timely filed as the continuous nuisance doctrine rendered any statute of limitations inapplicable. In light of our determination, we do not address the parties’ other contentions.

2. Ordinance’s Prelitigation Procedures
In order to pursue either binding arbitration or a court action, a complaining party must prepare a written “tree claim,” and serve the tree claim on the tree owner. (Ord., § 823, subd. (c).) Ordinance 15 As the record shows, the parties and the trial court proceeded on the basis that a lawsuit filed under the Ordinance could be defended against by laches. In the absence of any arguments to the contrary in the appellate briefs, we proceed on the same assumption. In any event, we note in passing that if the lawsuit were considered a claim to abate a private nuisance (see Venuto, supra, 22 Cal.App.3d at p. 124 [“ ‘[t]he essence of a private nuisance is an interference with the use and enjoyment of land’ ”]), it can be defended against by laches (see Felsenthal v. Warring (1919) 40 Cal. App. 119, 129). If the lawsuit were considered a claim to abate a public nuisance, concededly, as a general rule, it could not be defended against by either laches or the statute of limitations. (See City of Turlock v. Bristow (1930) 103 Cal. App. 750, 756; Civ. Code, § 3490 [“[n]o lapse of time can legalize a public nuisance, amounting to an actual obstruction of public right”].) Albeit, under certain particular circumstances it has been held that laches may prohibit a public nuisance abatement cause of action where, after a “weighing process,” the court has determined that the “injustice to be avoided was sufficient to counterbalance the effect of the defense upon a public interest.” (City and County of San Francisco v. Pacello (1978) 85 Cal.App.3d 637, 646 [appellate court concluded that under the particular circumstances therein the city and county’s action to abate an alleged public nuisance was barred by laches].)
119 August 9, 2022 Item 01 2621 September 19, 2022 September 19, 2022 Item 12 Item 12 24 section 822, subdivision (j) (§ 822(j)) defines a “tree claim” as follows: A “ ‘Tree claim’ shall mean the written basis for arbitration or court action under the provisions of this Article which includes the following:
[¶] (1) The nature and extent of the alleged obstruction, including pertinent and corroborating physical evidence. Evidence may include, but is not limited to, photographic prints, negatives, or slides. Such evidence must show absence of the obstruction at any documentable time during the tenure of the complaining party. Evidence to show the date of acquisition must be included. [¶] (2) The location of all trees alleged to cause the obstruction, the address of the property upon which the trees are located, and the present tree owner’s name and address. [¶] (3) Any mitigating actions proposed by the parties involved to resolve the tree claim. [¶] (4) The failure of personal communication between the complaining party and the tree owner to resolve the alleged obstruction as set forth in Section 823(a) of this Article. The complaining party must provide physical evidence that written attempts at reconciliation have been made and failed. Evidence may include, but is not limited to, copies of and receipts for certified or registered mail correspondence.”
The Prices contend dismissal of the lawsuit is required because Kahn’s prelitigation tree claim failed to include (1) “pertinent and corroborating physical evidence” in the nature of visual images showing an absence of an obstructed view from the main level of her residence before the growth of the tree, (2) “[e]vidence to show the date of acquisition” of the property by the property owner, and (3) “physical evidence that written attempts at reconciliation have been made and failed.” The latter two categories of evidence were satisfied by the trial 120 August 9, 2022 Item 01 2632 September 19, 2022 September 19, 2022 Item 12 Item 12 25 court’s admission of grant deeds showing Kahn had acquired the property in 1976 and continued to own the property and written correspondence showing “attempts at reconciliation have been made and failed.”
As to the argument that the Ordinance requires a prelitigation tree claim to include corroborating physical evidence in the form of visual images showing no obstruction before the growth of the tree, nowhere does the Ordinance provide that the court is without jurisdiction to adjudicate a tree claim and must dismiss the action if the prelitigation tree claim fails to include such evidence. While the Ordinance requires the parties participate in prelitigation procedures before pursuing either binding arbitration or litigation, and a tree owner would be entitled to a stay of the action to compel compliance if a complaining party had not complied with the prelitigation procedures (see McMillin Albany LLC v. Superior Court (2018) 4 Cal.5th 241, 255- 256, 259), that does not mean that the trial court must dismiss a tree action if the prelitigation tree claim fails to include physical evidence of the absence of the obstruction before the growth of the tree.

Simply put, the Ordinance does not contain a clear intent “to limit the fundamental jurisdiction of the courts” to adjudicate only in those cases where the complaining party’s prelitigation tree claim includes pertinent and corroborating evidence of the absence of an obstruction before the growth of the tree. (Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798, 808 (italics added).) If there were an intent to “withdraw a class of cases from state court jurisdiction, we expect” the Ordinance would make that intention clear. (Ibid.) Instead, the Ordinance “makes no reference to the jurisdiction 121 August 9, 2022 Item 01 2643 September 19, 2022 September 19, 2022 Item 12 Item 12 26 of the courts, nor does it otherwise speak to the courts’ power to decide a particular category of cases.” (Id. at pp. 808-809.) Thus, we reject the Prices’ argument that the trial court was required to dismiss the action for Kahn’s failure to attach to her prelitigation tree claim visual images of the absence of the obstruction from the main level of her residence before the growth of the tree.

In the alternative, the Prices argue that dismissal is still required because Kahn did not “fill the physical evidence gap” at trial as she presented only testimonial evidence regarding there being an unobstructed view before the growth of the tree. We see no merit to this argument. At trial, the court must determine both “[t]he existence of landmarks, vistas, or other unique features which cannot be seen because of growth of trees since the acquisition of the property” (Ord., § 824, subd. (a)(4)), and the degree to which the “alleged obstruction interferes with [the] view . . . by means of a measuring instrument or photography” (id., § 824, subd. (a)(5)); and, further, “[t]he extent of . . . view available and documentable as present at any time during the tenure of the complaining party is the limit of restorative action which may be required” (id., § 824 (c)(6)). However, these provisions do not impose a specific evidentiary requirement on the complaining party to produce visual images of the absence of obstruction before the growth of the tree, as the Prices suggest.

Moreover, even assuming the need for photographic evidence, the trial court’s findings based on the above enumerated criteria – that Kahn had enjoyed unobstructed views from the main level of her home before the growth of the tree – is supported by both Kahn’s testimonial evidence and her arborist’s testimony regarding the absence of the 122 August 9, 2022 Item 01 2654 September 19, 2022 September 19, 2022 Item 12 Item 12 27 obstruction before the growth of the tree based on an evaluation of the available historic photographs taken from the second level of the residence and the current partial view obstructions from the main level of the residence. (See fn. 8, ante.) The trial court, as the trier of fact, could properly combine the arborist’s testimony with its own on-site observations and the testimonial evidence of Kahn and her witnesses regarding the absence of the obstruction before the growth of the tree, “ ‘thus weaving a cloth of truth out of selected available material.’ ” (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 67-68.) In sum, we conclude the trial court was not required to dismiss the action predicated on Kahn’s failure to include in her prelitigation tree claim visual images of unobstructed views from the main level of her residence before the growth of the tree. Given this conclusion, we need not address the Prices’ additional evidentiary arguments.

II. Trial Court’s Order Directing Tree Removal
Ordinance section 824, subdivision (c), describes the restorative action that may be ordered by a court: “(1) Restorative actions may include written directions as to appropriate timing of trimming, thinning, topping, or removal. Such restorative actions are to apply only to current parties to the agreement. . . .[¶] Possible restorative actions may include (i) no action, (ii) trimming, (iii) thinning, (iv) delayed trimming or thinning, (v) topping, or (vi) removal with possible replacement plantings. [¶] (2) Restorative actions shall be limited to the trimming and/or thinning of branches where possible and practical.

Trimming or thinning may be on a delayed basis, providing time for the top of the tree to grow above the point where it obstructs sunlight or view. [¶] (3) When trimming and/or thinning of branches is not a 123 August 9, 2022 Item 01 2665 September 19, 2022 September 19, 2022 Item 12 Item 12 28 feasible solution, the impact on the health of the tree shall be considered before topping is required. [¶] . . . [¶] (6) The extent of . . . view available and documentable as present at any time during the tenure of the complaining party is the limit of restorative action which may be required. [¶] . . . [¶] (8) A tree which has been the subject of restorative action under the terms of this ordinance is exempted from other property owners’ claims for a period of five years from the date of the filing of a tree claim.”
In its statement of decision, the trial court explained how the tree’s removal was the only reasonable solution given that the following options were not feasible: (1) leaving the tree in the Prices’ exclusive control for them to have trimmed as they deemed appropriate would not work as the evidence demonstrated their hostility and indifference; (2) allowing the Prices to prune the tree to its February 2019 height would in no way restore the previously unobstructed views; and (3) allowing the tree’s height to be “gradually reduced . . . to the level of the [top of the] Prices’ home” could destroy the tree according to both arborists. In addition, to maximize the chances of the tree’s survival, the reduction of the tree could not be done at one time but could take “as long as eight years – depending on the tree’s response – before it could be reduced to the desired height and breadth,” and the parties’ “fractious history” would make it unlikely they would agree to “the desired height for each pruning cycle.” Also, a progressive reduction of the tree’s height would result in its growth being “redirected laterally,” and “[w]hile the vertical obstruction would remain in place for as long as eight years, during that same time the lateral obstruction would actually increase, further diminishing Kahn’s views.” Nor would 124 August 9, 2022 Item 01 2676 September 19, 2022 September 19, 2022 Item 12 Item 12 29 progressive pruning “achieve either side’s objectives. It would take years to restore any semblance of the Kahn home’s historic views. And were that objective achieved, the Prices would lose what they claim to value about the tree: both its current aesthetic appearance and the partial screening of the upper floors of the Kahn home.” The court also considered the potential impact on neighboring properties as “[a]mong the Ordinance’s purposes is the promotion of ‘the aesthetic and practical benefits’ provided by trees to ‘the entire community’ ” and a grant of restorative action would “limit other neighbors’ ability to seek restorative action . . . ‘for a period of five years.’ ” The court concluded that “[t]rimming the tree to the height of the [top of the] Prices’ home pose[d] insurmountable hurdles. To avoid cutting the tree so drastically as to threaten its survival, according to the experts, the pruning would have to occur over many years. And even that may contribute to the death of the tree. These parties who have been unable to communicate, much less agree, would be forced into decision-making at least annually. The [neighbors] would be precluded from seeking relief if the topping of the tree results in lateral growth that is more intrusive on their views. And if this method succeeds, while the views may ultimately be restored, the tree would be unrecognizable as a Monterey pine.”
Thus, the court found that the only option to “best achieve[] the Ordinance’s objectives” was the tree’s removal. While noting the Ordinance’s purpose was “ ‘[t]o discourage ill-considered harm to, or destruction of, trees . . . .,’ ” the court found removal would promote “ ‘the aesthetic and practical benefits which trees provide for individuals and the entire community,” in that the tree had “limited aesthetic 125 August 9, 2022 Item 01 2687 September 19, 2022 September 19, 2022 Item 12 Item 12 30 value, which would be diminished by the trimming necessary to restore even a portion of the historic views,” the tree did not benefit the “ ‘entire community,’ ” and to the extent it benefited the Prices it did so by unreasonably burdening Kahn and a neighbor.

The court also found the tree’s removal was appropriate “because it will provide finality to the parties. The alternative – trimming and topping – would have assured constant strife, with untold expense to the parties. The Ordinance is not intended ‘to replace the peaceful, sensible, and just resolution of differences between neighbors acting in good faith.’ . . . But where, as here, seven years have been consumed by discord between the parties, judicial intervention is required. Removal of the tree will end this dispute. [¶] [The court] considered whether to order replacement plantings as part of the ‘restorative action.’ Because the plantings would benefit the Prices, and presumably not be visible to Kahn, [the court left the] decision to the Prices, as the parties have demonstrated an inability to confer, much less to agree, on anything horticultural.”
Despite the Prices’ attempt to couch their argument in terms of legal error, we review the court’s decision for an abuse of discretion. “It is the general rule in this state that while the right to injunctive relief under proper circumstances is well established, its issuance is largely discretionary with the court and depends upon a consideration of all the equities between the parties. No hard and fast rule can be adopted which will fit all cases and hence each must be determined upon its own peculiar facts.” (Pahl v. Ribero (1961) 193 Cal.App.2d 154, 161.) “The discretion was the trial judge’s, not ours; and we can only interfere if we find that under all the evidence, viewed most favorably 126 August 9, 2022 Item 01 2698 September 19, 2022 September 19, 2022 Item 12 Item 12 31 in support of the trial court’s action, no judge could reasonable have made the order that he did.” (Newbauer v. Newbauer (1949) 95 Cal.App.2d 36, 40.)
A statement of decision “need do no more than state the grounds upon which the judgment rests, without necessarily specifying the particular evidence considered by the trial court in reaching its decision. [Citations.] ‘[A] trial court rendering a statement of decision under . . . [Code of Civil Procedure] section 632 is required to state only ultimate rather than evidentiary facts because findings of ultimate facts necessarily include findings on all intermediate evidentiary facts necessary to sustain them.’ ” (Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1125.) Further, while the expert arborists’ testimony could not be arbitrarily or unreasonably disregarded, the court was free to draw inferences and conclusions at odds with that testimony. (See Ortzman v. Van Der Waal (1952) 114 Cal.App.2d 167, 170-172 [“expert testimony,” even if uncontradicted, does not “exclude consideration of other facts which are pertinent to the issue involved”].) Hence, the Prices’ assertion that the trial court had to expressly reject or make credibility findings as to the testimony of the expert arborists is without basis.

Also, we see no merit to the Prices’ complaints that the trial court improperly considered the testimony of an immediate neighbor who testified at trial. The Ordinance does not preclude the court’s consideration of an immediate neighbor’s interest and, indeed, the provisions concerning “[c]ommunity [b]oard [m]ediation” specifically state that the “[p]arties should be encouraged to give notice to immediate neighbors and solicit input.” (Ord., § 832, subd. (b).) Of course, the bar on another claim for restorative action regarding the same tree for a period of five years made it especially important to consider any particular restorative action as it might affect an immediate neighbor.

In sum, the Prices have simply presented “ ‘a state of facts, a consideration of which, for the purpose of judicial action, merely affords an opportunity for a difference of opinion. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1449.) The Prices’ “elaborate factual presentation is but an attempt to reargue on appeal those factual issues decided adversely to [them] at the trial level, contrary to established precepts of appellate review. As such, it is doomed to fail.” (Hasson v. Ford Motor Co. (1982) 128 August 9, 2022 Item 01 2710 September 19, 2022 September 19, 2022 Item 12 Item 12 33 32 Cal.3d 388, 398-399 (Hasson).) Because we find no abuse of discretion in this case, we must uphold the court’s decision to remove the tree.

III. Trial Court’s Imposition of Section 128.5 Sanctions A. Relevant Facts

1. Background
After the parties completed their trial presentations, the court verbally provided a tentative decision from the bench largely in favor of Kahn on the substantive issues, but leaving open the question of the appropriate remedy. At that point, the parties agreed to mediation with another judge. The parties engaged in judicial mediation on July 11 and agreed to reconvene September 13 to report their progress to the trial court.

In the interim, the Prices, by their trial counsel William S.

Weisberg (Weisberg) of Weisberg & Miller (hereafter also collectively referred to as appellants), filed a motion to dismiss or for judgment on the pleadings regarding Kahn’s lack of standing to pursue her lawsuit (standing motion) because her San Francisco residence was not her “primary residence.” The motion’s factual predicate was Kahn’s recorded 2008 Florida declaration of domicile in which she declared that, as of January 2008, her domicile and legal residence was in Florida. It was also asserted that she had a bank loan, secured by a deed of trust, which required her San Francisco residence to be her “primary residence.” Because Kahn could only have one “primary residence,” the Prices opined that once the Bank learned about Kahn’s Florida declaration it would foreclose on the San Francisco residence, making the Bank the owner and the only one with standing to assert a 129 August 9, 2022 Item 01 2721 September 19, 2022 September 19, 2022 Item 12 Item 12 34 tree claim under the Ordinance. The Prices’ memorandum of points and authority included a footnote that Weisberg had served a copy of the standing motion on the Bank because it had “an interest in . . . knowing what misrepresentations were made by [Kahn],” and for the Bank’s “possible action relating to the factual basis put forth in this [m]otion.”
Kahn opposed the standing motion, taking particular note of the fact that Weisberg had served the standing motion papers on the Bank, a stranger to this litigation in order to interfere with Kahn’s personal and financial affairs. Kahn also filed a declaration explaining that she had received a line of credit with the Bank in 2010 secured by a deed of trust. She asserted that in an annual certification that the San Francisco residence was her primary residence, she truthfully certified she “ ‘[c]urrently’ ” lived in the property, she had not been “ ‘absent from the property due to mental and/or physical illness for more than twelve (12) months,’ ” and she had not “ ‘sold the property or conveyed title to the property.’ ” Kahn further advised the court and the Prices that the mediation would not proceed and she would prepare and serve a “ ‘safe harbor’ ” motion for sanctions under sections 125.8 and 125.7 for the filing of a frivolous standing motion.

At the October 7 hearing on the standing motion, counsel for the Bank appeared via Court Call. Before the hearing, counsel sent an email to the court stating that the Bank “is the investor on a reverse mortgage loan on the property of [Kahn]. Counsel for [the Prices] has contacted us and asked we attend as there are some issues re: how [the bank might] respond to certain arguments [the Prices] may be advancing as to the standing of the borrower, specifically the 130 August 9, 2022 Item 01 2732 September 19, 2022 September 19, 2022 Item 12 Item 12 35 implications of taxation and residency.” Kahn’s counsel advised the court she had no prior knowledge that Weisberg had actually contacted the Bank or its counsel.

The trial court denied the standing motion. After taking judicial notice of the Bank’s deed of trust and Kahn’s Florida declaration of domicile, the court rejected any contention that those documents would permit a finding, as a matter of law, that Kahn did not have standing to sue because the San Francisco property was not her primary residence. More significantly and dispositive, the court found that “the sole prerequisite for a complaining party to bring suit under the Ordinance” was status as the property owner, and, at the time of filing the complaint and at the time of trial “Kahn was, and currently is, the property owner with standing.”
The court further noted the Prices did not dispute that Kahn’s “recorded grant deed – admitted into evidence – identified [her] as the owner of the [San Francisco] property. They . . . rely on a provision of [the Bank’s] deed of trust which they contend is in default because Kahn’s domicile is Florida and therefore the [San Francisco] property is not her principal residence as required by the deed of trust. The Prices proceed from the alleged deed of trust default to the proposition that the lien holder, [the Bank], is the property owner and therefore the only party with standing to assert claims under the Ordinance.” However, the court found the Prices had not offered any legal authority for their “novel legal theory that a lien holder with a potential, but unasserted, default claim is the property owner.”
Kahn then filed a motion for sanctions under sections 128.5 and 128.7 based on the filing of the standing motion itself and appellants’ 131 August 9, 2022 Item 01 2743 September 19, 2022 September 19, 2022 Item 12 Item 12 36 serving the Bank in order to “harm . . . Kahn’s relationship with her lender and interfere with her finances. If there was any doubt about that, [the Prices] strongly signaled in their motion that they hoped [the Bank] would foreclose on . . . Kahn as a result of [the Prices’ standing motion]. . . . [S]uch actions would arguably be tortious in another context, but by using the process of the Court as the vehicle for their . . . interference, [the Prices] have cloaked their conduct in the litigation privilege. That gambit may save them from a claim for damages, but it shall not save them from sanctions.”
Kahn asserted that, even at the time she filed her motion for sanctions, her counsel did not know “the lengths” to which appellants had gone to try and hurt her. “Out of the blue, on November 6, 2019, . . . Kahn received a Notice from [her loan service provider]. . . advising she was ‘at risk of foreclosure’ for not satisfying the occupancy requirements [of the loan]. When [Kahn’s counsel] contacted [the loan service provider] . . . it was revealed that on September 20, 2019, just five days prior to the hearing on the Standing Motion, a ‘William Weisberg’ telephoned [the loan service provider] and advised them that [Kahn’s residence] was ‘vacant.’! . . . As the Court knows, this was a false statement and it could only be intended to disrupt . . . Kahn’s home ownership and her life.” (Bolding and italics in original.) The Prices opposed the sanctions motion and filed their own motion for sanctions against Kahn and her trial counsel for filing a frivolous sanctions motion.

On December 17, 2019, the trial court held a hearing on the parties’ competing sanctions motions. In response to questions from the court, Weisberg stated he had not spoken with the Bank’s counsel, 132 August 9, 2022 Item 01 2754 September 19, 2022 September 19, 2022 Item 12 Item 12 37 but had contacted the Bank’s loan service provider and its counsel and had sent the loan service provider a copy of the standing motion. The court found the standing motion misrepresented the facts of Kahn’s occupancy of her San Francisco residence and allowed Kahn to amend her sanctions motion to add Weisberg’s newly-reported conduct with Kahn’s loan service provider and counsel as further grounds for an award of sanctions.

Accordingly, three days later, Kahn filed and served an amended motion for sanctions under section 128.5. In support of the amended motion, Kahn’s counsel submitted a copy of Weisberg’s September 20, 2019 email to counsel for the loan service provider. The email included three attachments pertaining to the standing motion: (1) the Prices’ memorandum points and authorities; (2) their request for judicial notice; and (3) Kahn’s “declaration.” In the September 20, 2019 email, Weisberg stated, in pertinent part (bolding and italics in original):
“I am attaching the relevant pleadings which we discussed. “In summary, in 2010 . . . Kahn (Plaintiff in our action) took out a massive reverse mortgage . . . with [the Bank]. (Attached to our Request for Judicial Notice[.])
“The law and the Security Agreement at paragraph 5 reads:
‘Borrower [i.e. Plaintiff] shall at all times occupy, establish, and use the Property as the Borrower’s principal residence. . . . Borrower shall also be in default if Borrower, during the loan application process, gave materially false or inaccurate information or statements to the Lender (or failed to provide Lender with any material information) in connection with the loan evidenced by the Loan Agreement, including, but not limited to,
representations concerning Borrower’s occupancy of the
Property as a principal residence.’
133 August 9, 2022 Item 01 2765 September 19, 2022 September 19, 2022 Item 12 Item 12 38 “The Borrower, however, certified and recorded in the State of Florida that in 2008 (2 years before this loan) and by her testimony, continuing until the present that; I was formerly a legal resident San Francisco, CA and I resided [past tense] at [a specified San Francisco address]. However, I changed my domicile to and am since 2d day of Jan., 2008, reside at [specified address in Florida][.] She went on to certify that ‘I have no intention to further return to my former domicile and intend to remain in [specified city in Florida][.]’ [¶] . . . [¶]
“It appears evident to us that the Borrower here provided false and inaccurate information to the lender from the inception of this loan (and to your client, the [loan service provider] since 2012) with respect to her primary residence. It is obvious to us that one cannot claim principal or primary residence in Florida to avoid California State tax obligations and claim principal or primary residence during the same period in California to obtain this loan.
“It is telling that the opposition presented by the Plaintiff to our motion, which is heavy on procedural objections and hyperbole, never refutes the facts above. Her declaration suggests that she fills out a form provided to her by [the loan service provider] which simply asks her if she ‘currently lives in the property’, and while she admittedly visits the property annually she believes (subjectively) that this satisfies the ‘primary residency requirement’ of the loan to your client’s and [the Bank’s] satisfactions. She never indicates that you or [the Bank] have ever been provided with the certification of her Florida primary residency requirement.
“I would suspect that your client has an interest in these facts.

Not only because it is our belief that the right to call the note has been triggered and is incurable, but the action taken by the Plaintiff (requesting the removal of a tree on our clients’ downhill [sic] property) will, in the opinion of our geotechnical engineers would [sic] greatly destabilize the hillside or backyard of the Plaintiff’s (borrowers’ [sic]) property and resulting in great damage – not only to the secured property of the Borrower but to our Clients as well. If that issue is of interest to you I would be pleased to offer to present [sic].” 134 August 9, 2022 Item 01 2776 September 19, 2022 September 19, 2022 Item 12 Item 12 39 Kahn’s counsel also submitted a December 18, 2019 letter from the loan service provider’s Correspondence Department sent in response to communications sent by Kahn’s counsel on November 11, November 19, November 25, and December 13, 2019. The letter stated, in pertinent part, as follows:
“. . . As you may know, the referenced loan is a California Senior Equity Reserve Mortgage Platinum (‘Platinum’) Loan. Under Platinum terms if the property ceases to be the principal residence of the borrower, the loan becomes immediately due and payable. “[The loan service provider] received a telephone call from William Weisberg on September 20, 2019 who advised that the property was a residence of Ms. Kahn, but not her primary residence. [The loan service provider] began the default process at that time to ensure that required timelines were met and to investigate the claim he made. [The loan service provider] had not sent any notices prior to this notification as the request for certification of occupancy is sent annually.
“[The loan service provider] attempted contact with Ms. Kahn on September 23, 2019 via telephone. Someone answered, but hung up when the representative was providing required disclosures. [The loan service provider] then attempted to contact [Kahn’s relative], who is listed as an authorized alternate contact, and left a voice mail message. [The loan service provider] did not receive return calls. As a result [the loan service provider] sought and obtained approval from the lender to proceed to call the loan due and payable.
“On October 23, 2019 [the loan service provider] mailed the enclosed reverse Mortgage Due and Payable Notice to Ms. Kahn via regular and certified mail. [The loan service provider] also requested an inspection of the property in an attempt to determine occupancy. A copy of the property inspection invoice is enclosed.
“Upon receipt of your fax dated November 8, 2019 [the loan service provider] initiated the process to rescind the due and payable action. The due and payable process was immediately placed on hold.

Notification was provided to the [loan service provider] Occupancy 135 August 9, 2022 Item 01 2787 September 19, 2022 September 19, 2022 Item 12 Item 12 40 Department who then requested additional documentation to fully establish Ms. Kahn’s continued occupancy of the property as her primary residence.
“When [the loan service provider][sic] the signed occupancy certification and the utilities bills, the due and payable action was stopped and the loan status changed to Active. [The loan service provider] regrets the confusion created by this situation.” Appellants opposed the amended motion for sanctions.

2. Order Granting Section 128.5 Sanctions
The trial court granted Kahn’s amended motion for section 128.5 sanctions. In pertinent part, the court stated it did not have to rely on the request for sanctions under section 128.7 for the filing of a frivolous standing motion “to afford Kahn her well-deserved relief” because it was granting Kahn’s request for sanctions under section 128.5, subdivision (a), based on appellants’ “ ‘action or tactics,’ ” which the court found were “ ‘made in bad faith,’ ” and were “ ‘frivolous or solely intended to cause unnecessary delay.’ ”
The court went on to note that while its denial of the standing motion was “sufficient to justify a sanctions award to compensate Kahn for the cost of opposing the specious motion,” “the evidence of Weisberg’s conduct vis a vis [the Bank and loan service provider] compels a harsher remedy. [¶] Not only did Weisberg misrepresent Kahn’s occupancy to her lender and its loan service provider, but without a factual or legal basis, he urged the lender to call the note and argued that the default was ‘incurable.’ As if that were not sufficient, Weisberg misrepresented the geotechnical engineering evidence which [the court] heard at trial. There was no credible evidence that the remedy [the court] ordered – if implemented as advised by the experts – 136 August 9, 2022 Item 01 2798 September 19, 2022 September 19, 2022 Item 12 Item 12 41 would ‘greatly destabilize the hillside or backyard of [Kahn’s property] . . . and result[ ] in great damage – not only to the secured property of [Kahn] but to [the Prices].’ Frustrated by the outcome of the trial over the removal of a lone Monterey pine tree, [appellants] sought to trigger a mortgage default and possibly foreclosure proceedings on the home Kahn occupied since the 1970s, and all because she invoked a San Francisco ordinance to get a judicial determination of her rights.” The court specifically found that “the motivation for filing the standing motion was to delay the finality of the judgment and to improve the Prices’ settlement bargaining position. [The court did not] know the details of the mediation, but filing the motion on September 3, ten days before the resumption of the mediation allows the inference that [appellants’] intent was to retaliate against Kahn in the misguided hope that she would settle on their terms to avoid damaging her relationship with her lender. As is evident from Weisberg’s call which he confirmed in the September 20 email, when their effort at intimidation failed, the Prices sought to punish Kahn by encouraging the lender to declare a default, and – for a limited time – they succeeded. [Appellants’] . . . relentless pursuit of their objective to thwart the court’s ruling and Kahn’s rights is evident from a brief review of the chronology.
“On September 3 – with the mediation to resume on September 13 – [the Prices] served the standing motion on [the Bank], a nonparty with no interest in the case, and included the Bank on the proof of service, presumably to signal their intent to Kahn. Not content with putting the Bank on notice, Weisberg contacted [the Bank’s] legal counsel . . . requested and secured his appearance at the hearing. 137 August 9, 2022 Item 01 28079 September 19, 2022 September 19, 2022 Item 12 Item 12 42 “When it appeared [the] Bank . . . would not do his bidding, Weisberg contacted . . . [the loan service provider] and its counsel, by phone and with the September 20 email (which accused Kahn of ‘committing criminal loan fraud’), and sent the standing motion, but not [Kahn’s] opposition which refuted [the Prices’] inaccurate statements. The September 20 email recites in bold and italicized font the occupancy requirements of [Kahn’s] reverse mortgage and claims that ‘[Kahn] provided false and inaccurate information to the lender’ because she had filed a declaration of domicile in Florida prior to obtaining the loan. Weisberg then argues: ‘It is telling that the opposition presented by [Kahn] to our motion, which is heavy on procedural objections and hyperbole, never refutes the facts above. Her declaration suggests that she fills out a form provided to her by your client which simply asks if she “currently lives in the property,” and while she admittedly visited the property annually she believes (subjectively) that this satisfies the “primary residency requirement” of the loan to your client’s and [the Bank’s] satisfaction.’ ” [¶] The suggestion that Kahn ‘visits’ – as opposed to occupies – her home was patently false. Not only were there pre-trial site inspections at both properties attended by defendants’ counsel and experts, and [the court’s] site inspection with the Prices and their counsel, but a principal argument for retaining the tree was that it shielded the Prices and their children from constant observation of their home by Kahn. When [the court] questioned Weisberg about his ‘visits the property annually’ statement, it was clear that his prevarication had been discovered, and he had no explanation. [¶] Perhaps underestimating Kahn’s counsel, Weisberg assumed that he could 138 August 9, 2022 Item 01 2810 September 19, 2022 September 19, 2022 Item 12 Item 12 43 instigate the default and not be held responsible for his actions. Not content to rely solely on his misrepresentation of Kahn’s occupancy, Weisberg sought to strengthen his position by arguing – contrary to the evidence – that removal of tree would destabilize both properties.

Fortunately for Kahn, her lawyer was not deterred. She not only rescued the property but provided the evidence the court needed to address the Prices’ and Weisberg’s transgressions.”
The court therefore found that “[t]he prerequisites for providing relief pursuant to section 128.5 are justified by the extraordinary actions – both in and outside the court – undertaken by the Prices and Weisberg. The standing motion was frivolous, intended to cause unnecessary delay, and filed in bad faith. However, the motion was merely the overture for the bad faith conduct which followed: the effort to precipitate a default on the reverse mortgage, which was only avoided by the valiant efforts of Kahn’s indomitable counsel. That the Prices and Weisberg possessed an ‘evil motive’ is obvious, that they pursued it so blatantly is astonishing.” Thus, as a result of appellants’ “conduct – which included false statements and unsupportable legal claims – the lender and its service provider issued a notice of default on the reverse mortgage on Kahn’s residence. In response Kahn incurred legal fees and costs to undo the harm done by [appellants’] extraordinary misconduct.”
The court awarded sanctions in the requested sum of “$47,345.30 as the total [Kahn] incurred in fees, costs, and expenses to address the standing motion and to counter the misconduct” of appellants. Having considered the circumstances, and after reviewing the record after the hearing, the court concluded the full amount requested was justified:
139 August 9, 2022 Item 01 2821 September 19, 2022 September 19, 2022 Item 12 Item 12 44 “At the hearing [the court stated its] tentative decision to reduce the amount by $7,457.75 – the amount attributed by [Kahn] to participating in the judicial mediation following trial. However, the evidence adduced in the sanctions motion when reviewed in its totality leads inescapably to the conclusion that [appellants] used the mediation as a delay tactic to afford counsel the opportunity to file the standing motion. . . . [The court] encourage[d] parties to use the court’s judicial mediation program – which provides confidential alternate dispute resolution at no cost – but where, as here, it was used as a tool to further the strategy of obstruction, [Kahn] should not bear the cost of participation.”
The court also considered how to allocate the sanctions, and “concluded from the evidence at trial – based in part on [Katherine] Price’s emails to third parties – and the post-trial conduct described in this order that the sanction should be awarded against [appellants],” and that while the court could allocate the award against defense counsel only, it found defense counsel’s “actions and tactics were not only known by [the Prices] but were authorized by them as well.” The court ordered sanctions in the sum of $47,345.30, to be paid by appellants, jointly and severally, to compensate Kahn for the attorney fees and costs that she incurred to “oppose the standing motion and defendants’ sanctions motion, to present [sic] plaintiff’s sanctions motion and to undo the notice of default on her home.” 16 16 We assume the trial court and attorney Weisberg have already reported the judicially imposed sanctions to the State Bar of California. (Bus. & Prof. Code, §§ 6068, subd. (o)(3) [attorney selfreporting duties]; 6086.7, subd. (a)(3) [court reporting duties].) 140 August 9, 2022 Item 01 2832 September 19, 2022 September 19, 2022 Item 12 Item 12 45 B. Analysis
Appellants present extensive argument directed at Kahn’s initial sanctions motion, contending the motion was not in compliance with the “safe harbor provisions” of sections 128.5, which was a structural error requiring reversal as a matter of law. However, section 128.5’s “ ‘safe harbor provisions’ ” are applicable only where sanctions are sought for “frivolous pleadings” that can be withdrawn or appropriately corrected. (§ 128.5, subd. (f)(1)(B),(D); see In re Marriage of Sahafzadeh-Taeb & Taeb (2019) 39 Cal.App.5th 124, 147 [safe harbor provisions “allow time for the withdrawal of frivolous pleadings”].) Here section 128.5’s “safe harbor” provisions were not applicable as the court did not award sanctions for the failure to withdraw the standing motion, but for appellants’ bad faith conduct and tactics in sending factually misleading and legally unsupportable communications to the Bank and loan service provider with the sole intent to harass Kahn and unnecessarily delaying the court proceedings. We therefore reject appellants’ reliance on Kahn’s purported lack of compliance with section 128.5’s safe harbor provisions.

We see no merit to the remainder of appellants’ numerous arguments, beginning with their assertion that the court erred in denying the Prices’ standing motion and therefore sanctions could not be granted. The trial court correctly found Kahn had standing to pursue an action as the evidence admitted at trial satisfied the only standing requirement – that the “complaining party” be the “property owner.” (Ord., § 822, subd. (b).) Even if Kahn had never occupied or resided in the property, she was still the property owner by virtue of the grant deeds and had standing to pursue an action.
141 August 9, 2022 Item 01 2843 September 19, 2022 September 19, 2022 Item 12 Item 12 46 Next, appellants are incorrect in stating that the trial court analysis of defense Weisberg’s September 20, 2019 email was factually unsupported and legally erroneous. The court’s interpretation of the email and the inferences to be drawn from it were not based solely on the language in the email, but also on Weisberg’s responses to the court’s questions concerning certain statements in the email, which the court found to be not credible. Appellants’ “elaborate factual presentation is but an attempt to reargue on appeal those factual issues decided adversely to [them] at the trial level, contrary to established precepts of appellate review. As such, it is doomed to fail.” (Hasson, supra, 32 Cal.3d at pp. 398-399.)
There is likewise no merit to appellants’ argument that Kahn did not prove she incurred any expenses as a result of the communications.

Based on Weisberg’s September 20, 2019 email, the loan service provider’s December 18, 2019 letter, and the declarations of Kahn’s counsel, the trial court could and did find that, absent defense counsel’s communications, neither the Bank nor the loan service provider would have made any inquiry regarding the loan in the first instance. The trial court was free to reject appellants’ contentions that no sanctions were warranted because a default notice would not have issued had Kahn responded to the loan service provider’s initial telephone inquiries, the actions of the Bank and loan service provider were “superseding” causes of any expenses Kahn may have incurred based on the issuance of the default notice and its withdrawal, and/or Kahn failed to provide documentary “evidence of her interactions with the bank preceding its decision not to proceed with foreclosure.” 142 August 9, 2022 Item 01 2854 September 19, 2022 September 19, 2022 Item 12 Item 12 47 Appellants attempt to argue that Weisberg’s communications with the Bank and loan service provider were not sanctionable as they were outside of civil litigation. This argument is both forfeited for appellate review as it is now raised for the first time and has absolutely no merit. Defense counsel’s factually misleading and legally unsupportable communications were without question made in the course of the litigation and the court in no way abused its discretion in finding they were made to harass Kahn and unnecessarily delay entry of judgment in her favor. We are not persuaded otherwise by appellants’ citations to portions of the legislative history of section 128.5 or the factually distinguishable, and therefore inapposite, cases of County of Imperial v. Farmer (1988) 205 Cal.App.3d 479, Rabbitt v.

Vincente (1987) 195 Cal.App.3d 170, and Optimal Markets, Inc. v.

Salant (2013) 221 Cal.App.4th 912. Nor do we see any merit to appellants’ argument that upholding the award of sanctions in this case constitutes a violation of appellants’ constitutional rights to free speech and due process and would otherwise have “monumental adverse consequences for legal rights and public policies.”
In a similar vein, appellants contend section 128.5 sanctions cannot be awarded to Kahn for any expenses incurred to “undo the notice of default on her home” because those sums were not incurred as a result of actions or tactics in litigation – rather, they were incurred as a result of having to address a default in her loan in a private transaction between Kahn and the Bank outside of litigation.

According to appellants, the sanctions were in the nature of “consequential damages,” which are not permissible under the 143 August 9, 2022 Item 01 2865 September 19, 2022 September 19, 2022 Item 12 Item 12 48 authority of Brewster v. Southern Pacific Transportation Co. (1991) 235 Cal.App.3d 701 (Brewster). We disagree.

The appellate court in Brewster held that the trial court had no authority to impose section 128.5 sanctions against an individual attorney in order to compensate the plaintiff railroad for lost profits after counsel served a false temporary restraining order that caused the railroad to stop operating trains. (Brewster, supra, 235 Cal.App.3d at pp. 707, 710.) When the railroad learned there was no temporary restraining order, it filed a motion for sanctions, seeking to recover $139,000 in consequential damages for the financial loss caused by the wrongful stopping of the trains, plus related attorney’s fees attributed to calculating the financial loss, which the trial court granted. (Id. at p. 711.) The Court of Appeals reversed, not because section 128.5 sanctions were limited to attorney fees and costs, but because the consequential damages and related attorney fees to document the financial loss were “unrelated to the cost of the actual proceedings before the court.” (Brewster, supra, at pp. 710-711, 716.) The court noted that allowing such an award in the nature of sanctions would relieve the railroad of its “obligation to file a civil suit for damages against [the attorney] to recover the cost of rerouting [its] trains.” (Id. at pp. 711, 716.)
Unlike in Brewster, here the sanctions were warranted to compensate Kahn for reasonable expenses (attorney fees and costs) directly related to appellants’ bad faith tactics in the litigation, and to compensate her for those expenses to mitigate appellants’ misconduct.

Hence, the sanctions awarded in this case are “more closely related” to the litigation than the consequential damages and related attorney fees 144 August 9, 2022 Item 01 2876 September 19, 2022 September 19, 2022 Item 12 Item 12 49 at issue in Brewster. (Tenderloin Housing Clinic, Inc. v. Sparks (1992) 8 Cal.App.4th 299, 307-308 (Tenderloin Housing Clinic) [rejecting reliance on Brewster, appellate court upheld an award of sanctions for “reasonable expenses” to reimburse for lost vacation time and airfare expenses that defendants’ counsel was required to pay when she had to cut short her vacation to attend depositions that were scheduled in violation of parties’ stipulations]; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 9, 27-28 [appellate court upheld an award of sanctions to compensate a corporate party for the cost of time spent by corporate personnel in defending a meritless cross-complaint].) Because we hold the expenses (attorney fees and costs) incurred by Kahn to “undo the default notice on her home” caused by appellants’ bad faith actions and tactics were properly awarded as section 128.5 sanctions, we reject appellants’ additional claim that such sums should have been adjudicated in a separate civil suit. (Tenderloin Housing Clinic, supra, 8 Cal.App.4th at p. 308.)17

DISPOSITION
Case No. A159536. The appeal from the judgment, filed
December 2, 2019, is dismissed.

Case No. A160057. The appeals from the orders, filed February 25, 2020 and February 26, 2020, are dismissed. The amended judgment, filed February 26, 2020, is affirmed.

Plaintiff and respondent Linda Kahn is awarded costs on appeals in case No. A159536 and case No. A160057.
17 In light of our determination, we do not address appellants’ other contentions.
145 August 9, 2022 Item 01 2887 September 19, 2022 September 19, 2022 Item 12 Item 12 50 _________________________
Petrou, J.

WE CONCUR:
_________________________
Fujisaki, Acting P.J.
_________________________
Chou, J.*
Kahn v. Price et al./A159536 A160057
* Judge of the Superior Court of San Mateo County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
146 August 9, 2022 Item 01 2898 September 19, 2022 September 19, 2022 Item 12 Item 12 51 Trial Court: San Francisco County Superior Court
Trial Judge: Hon. Jeffrey S. Ross
Counsel: Bonapart & Associates, Barri Kaplan Bonapart; Bien & Summers, Eilliot L. Bien, for Plaintiff and
Respondent.

Law Offices of Tony J. Tanke, Tony J. Tanke;
Weisberg & Miller, William S. Weisberg, for
Defendants and Appellants.
147 August 9, 2022 Item 01 29089 September 19, 2022 September 19, 2022 Item 12 Item 12 Planning Commission Subcommittee and Commissioners,
At our initial hearing, the Planning Commission discussed the possibility of a multi-year process by which our view might be partially restored over multiple years of trimming and waiting for the trees to grow to see under the canopy. In addition to our other prior arguments, we point out that such a plan is not consistent with the language of section 23.51.110 of the Ordinance.

Enforcement [23.51.110]
The Subject Tree owner shall comply with any work prescribed by the Planning Commission or Council no later than 90 days after final action on the Application, unless, it is determined that it is less harmful to the Subject Tree for the work to occur at a specific time of the year, in which case, the work shall be performed no later than 90 days from a date set by the Planning Commission or Council. Thereafter, the continued maintenance (if required by Resolution) of the Subject Tree that is not in compliance with the final order prescribed by the Planning Commission or Council shall constitute a misdemeanor or infraction, punishable in accordance with the provisions of DMMC Chapter 1.08 and is declared a public nuisance which may be enjoined or abated as provided by law. (emphasis added) Therefore, according to DMMC 23.51.110, the work to restore our view has to occur within 90 days after “final action on the Application” or within 90 days of “a date” “at a specific time of the year” in which it is “less harmful to the Subject Tree.” The reference is to a “specific time of the year,” not other years and to “a date” not multiple dates over multiple years. So prescribing work to restore our view over multiple years of work is not consistent with the enforcement section of the Ordinance. To be in compliance with the Ordinance, any restorative action plan passed by resolution must restore our view within 90 days after “final action on the Application” or from “a date” during a “specific time of the year” when “it is less harmful to the Subject Tree(s).”
Indeed, we are concerned that since multiple years of trimming falls outside the language of the enforcement clause of the Ordinance, the discussed plan of multiple successive years of timing would not be enforceable and this could further deprive us of our established right to view restoration.

While the Ordinance does allow a requirement for ongoing maintenance [23.51.090], maintenance is action to maintain the restored view not to affect restoration of the view. For trees that are not to be removed, we do request that you include ongoing maintenance, as was included in the Walton report.

In addition, we again point out that “waiting for the trees to grow” is not an action and therefore cannot be part of a restorative action plan.

This reinforces our contention that a restorative action plan that does not promomptly and substantially restore our extensively obstructed high-quality scenic view such as the plan discussed at the initial hearing is not consistent with the intent or language of the Ordinance.

Thank you again for your thoughtful consideration,
Michael and Angela Deftos
148 August 9, 2022 Item 01 2910 September 19, 2022 September 19, 2022 Item 12 Item 12 1 Adriana Jaramishian
From: deftos <[email protected]>
Sent: Monday, January 31, 2022 11:07 AM
To: Adriana Jaramishian
Subject: Fwd: View Restoration on Torrey Pines Ter
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.

Adriana,
Please share this email in support of the Walton View Restoration Plan from our neighbor, Anne Daigle, with the planning commissioners.

Thanks,
Michael and Angela Deftos
---------- Forwarded message ---------
From: Anne Daigle <[email protected]>
Date: Mon, Jan 31, 2022 at 11:02 AM
Subject: View Restoration on Torrey Pines Ter
To: michael deftos <[email protected]>
Cc: Carly Michaels <[email protected]>
Dear Michael &Angela and Hal &Carly,
We have reviewed Robert Walton’s recommendations for view restoration (dated 22 January 2022) for the Deftos and Michaels properties located on Torrey Pines Terrace. We fully support his recommendation, including removal of tree #1 and the pruning of the other Torrey Pines trees in accordance with the arborist recommendation. We know the implementation of this plan will also benefit the neighborhood of Torrey Pines Terrace by restoring and maintaining views from other properties and helping maintain property values for the neighborhood. In addition, these reasonable recommendations are essential for view restoration for your properties and are in keeping with the ordinances set forth by the City of Del Mar.

Specifically, as you can see from the photo below, these trees have encroached on our scenic view as well, and will continue to impact our view more each year. Trees 1, 2 and 5 will have a significant impact to our scenic view over next 2-3 years. A "community solution" to view restoration for your property, the Michael’s property, Torrey Pines Terrace homes and for general enjoyment of views by everyone in the community is the best solution proactively. This solution also maintains neighborhood harmony.
149 August 9, 2022 Item 01
Exhibit G
2921 September 19, 2022 September 19, 2022 Item 12 Item 12 2 Please let us know if you need more information or data to support arborist Robert Walton’s comprehensive recommendations.

Sincerely,
Anne Daigle
264 Torrey Pines Ter
Del Mar. CA. 92014
150 August 9, 2022 Item 01 2932 September 19, 2022 September 19, 2022 Item 12 Item 12 1 Adriana Jaramishian
From: deftos <[email protected]>
Sent: Tuesday, February 1, 2022 1:59 PM
To: Adriana Jaramishian
Subject: Fwd: View Restoration Plan for White's Trees
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.

Adriana,
Please share this email in support of the Walton View Restoration Plan from our neighbors, Alex and Rita Klibanov, with the planning commissioners.

Thanks,
Michael Deftos
---------- Forwarded message ---------
From: Rita Klibanov <[email protected]>
Date: Tue, Feb 1, 2022 at 1:27 PM
Subject: Re: View Restoration Plan for White's Trees
To: deftos <[email protected]>
We have reviewed Robert Walton ‘s plans for view restoration for the Deftos and Michaels properties and fully support his recommendations
Alex and Rita Klibanov
209 Torrey Pines Terrace
151 August 9, 2022 Item 01 2943 September 19, 2022 September 19, 2022 Item 12 Item 12 1 Adriana Jaramishian
From: deftos <[email protected]>
Sent: Sunday, January 30, 2022 6:18 PM
To: Adriana Jaramishian
Subject: Fwd: View Restoration Plan for White's Trees
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.

Adriana,
Please share this email in support of the Walton View Restoration Plan from our neighbors, Edna and Dan Maneval, with the Planning Commissioners.

Thanks,
Michael and Angela Deftos
---------- Forwarded message ---------
From: Edna Chow Maneval <[email protected]>
Date: Sun, Jan 30, 2022 at 3:47 PM
Subject: Re: View Restoration Plan for White's Trees
To: deftos <[email protected]>, Carolyn Michaels <[email protected]> Cc: Daniel Maneval <[email protected]>
Dear Michael, Angela, Carly, and Hal,
Thank you for the update on your view restoration plan and the recommendations from the City-approved arborist, Robert Walton.

Dan and I are supportive of Mr. Walton’s recommendation, including removal of Tree #1.

Implementation of this plan will benefit the entire Torrey Pines Terrace neighborhood by restoring and maintaining views from other properties and helping maintain property values for all.

With best regards,
Edna and Dan Maneval
152 August 9, 2022 Item 01 2954 September 19, 2022 September 19, 2022 Item 12 Item 12 1 Adriana Jaramishian
From: deftos <[email protected]>
Sent: Sunday, January 30, 2022 6:24 PM
To: Adriana Jaramishian
Subject: Fwd: View Restoration Plan for White's Trees
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.

Adriana,
Please share this email in support of the Walton View Restoration Plan from our neighbors, John and Peggy Overland, with the planning commissioners.

Thanks,
Michael and Angela Deftos
---------- Forwarded message ---------
From: John Overland <[email protected]>
Date: Sat, Jan 29, 2022 at 7:40 AM
Subject: Re: View Restoration Plan for White's Trees
To: deftos <[email protected]>
As neighbors we support support the removal of the tree as recommended and the further reduction of the other trees to restore the the views for the Deftos and Michael's properties.

John and Peggy Overland
153 August 9, 2022 Item 01 2965 September 19, 2022 September 19, 2022 Item 12 Item 12 1 Adriana Jaramishian
From: deftos <[email protected]>
Sent: Sunday, January 30, 2022 6:22 PM
To: Adriana Jaramishian
Subject: Fwd: View Restoration Plan for White's Trees
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.

Adriana,
Please share this email in support of the Walton View Restoration Plan from our neighbors, Pauline and Don Resnick, with the planning commissioners.

Thanks,
Michael and Angela Deftos
---------- Forwarded message ---------
From: Pauline Chu <[email protected]>
Date: Sat, Jan 29, 2022 at 10:05 AM
Subject: Re: View Restoration Plan for White's Trees
To: [email protected] <[email protected]>, [email protected] <[email protected]> Cc: Pauline Chu <[email protected]>
We support City of Del Mar approved arborist Mr. Robert Walton’s view restoration plan as proposed and recommended for the Deftos and Michaels properties unreservedly including the removal of tree #1.

Mr. Walton stated in his report “tree could easily have been maintained lower six to eight years ago”.

If the measures and maintenance plan as outlined by Mr. Walton are not undertaken at this time, these same five (5) Torrey Pine trees on the White’s property down the road undoubtedly will also unreasonably obstruct our primary scenic view.

This scenic view is what inspired and motivated us and we believe our neighbors as well to purchase our home on Torrey Pines Terrace.

We believe implementation of Mr. Walton’s view restoration plan will benefit all Torrey Pines Terrace homeowners by restoring and maintaining our views and thereby also maintaining our property values.

Respectfully,
Pauline & Don Resnick
154 August 9, 2022 Item 01 2976 September 19, 2022 September 19, 2022 Item 12 Item 12 2 251 Torrey Pines Terrace
155 August 9, 2022 Item 01 2987 September 19, 2022 September 19, 2022 Item 12 Item 12 1 Adriana Jaramishian
From: deftos <[email protected]>
Sent: Monday, January 31, 2022 9:43 AM
To: Adriana Jaramishian
Subject: Fwd: View Restoration Plan for White's Trees
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.

Adriana,
Please share this email in support of the Walton View Restoration Plan from our neighbor, Ole Snyder, with the planning commissioners.

Thanks,
Michael and Angela Deftos
---------- Forwarded message ---------
From: Ole Snyder <[email protected]>
Date: Mon, Jan 31, 2022 at 7:51 AM
Subject: Re: View Restoration Plan for White's Trees
To: deftos <[email protected]>
Michael,
Thank you for the emails and clarifications. As an owner at 280 Torrey Pines Terrace I am in full support of the tree removal plan as my primary scenic views from the home are already impacted and will be greatly impacted by any further growth of trees outlined as "number 1" and "number 2". I also point out that public views are impacted as well and should be maintained or restored.

Thank you for coordinating with me.

Ole Snyder MD
280 Torrey Pines Terrace
Del Mar CA 92014
760-6139333
156 August 9, 2022 Item 01 2998 September 19, 2022 September 19, 2022 Item 12 Item 12 1 Adriana Jaramishian
From: deftos <[email protected]>
Sent: Sunday, January 30, 2022 6:20 PM
To: Adriana Jaramishian
Subject: Fwd: View restoration
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.

Adriana,
Please share this email in support of the Walton View Restoration Plan from our neighbors, Susan and Dennis Swift, with the Planning Commissioners.

Thanks,
Michael and Angela Deftos
---------- Forwarded message ---------
From: Susan Swift <[email protected]>
Date: Sat, Jan 29, 2022 at 2:19 PM
Subject: View restoration
To: deftos <[email protected]>
Cc: Carolyn Michaels <[email protected]>
Michael,
Thank you for your follow-up email detailing the city-approved arborist’s recommendation for view restoration for your property and the Michaels’. We fully support his recommendation, including removal of tree #1. Implementation of this plan will also benefit us and other neighbors by restoring and maintaining our views and helping to maintain property values for the entire neighborhood.

Susan and Dennis Swift
157 August 9, 2022 Item 01 300 299 September 19, 2022 September 19, 2022 Item 12 Item 12 _____________________________________________________________________ adamb953mail.com (858) 837-2363
To the Chair and Members of the Del Mar Planning Commission On behalf of homeowners Sheryl and Harvey White
Re: Applications TVS21-002 and 003
August 3, 2022
At the outset, I again thank the Commission for granting a one-month continuance of the July hearing(s) to allow me time to review the pertinent materials and seek additional input from a certified arborist on appropriate Torrey Pine trimming methodologies.

Following the July meeting, I watched the video of the December 7, 2021 hearing(s), reviewed the voluminous correspondence and read the reports submitted by the applicants’ arborist, along with the ones submitted by the White’s arborist. I also reviewed the Planning Commission subcommittee’s report on recommended Restorative Actions.

After these reviews, it was clear, was that none of the previously submitted arborists’ reports offered a detailed assessment of the trees, or a course of action that reflected Commissioner’s comments at the December hearing and in the Subcommittee’s report - an approach for Restorative Action that would open views for the applicants while also protecting the near- and long-term health of the trees.

I, therefore, suggested to the Whites that we consult with an arborist who has particular expertise on Torrey Pines and who is also familiar with the City’s Tree preservation regulations and the TVS processes. I also felt it important that, as was recommended in the Subcommittee report and by other Commissioners, we return with an arborist’s recommendations not only for near-term trimming but for long-term view-restoration/protection as well.

To meet the goals and the deadline, I suggested that the Whites retain Mark Wisniewski, a respected arborist and landscape architect with many years of experience with Del Mar and its Torrey Pine trees.

Mr. Wisniewski is on the City’s list of consulting arborists list and, for a number of years, was himself the City’s own on-call arborist. In fact, during the Commission’s December 7th proceedings, Mr.

Wisniewski was mentioned as a possible resource. It is also helpful that he was the City Arborist at the time the White residence went through the DRB review process and was constructed. Coincidentally, Mr.

Wisniewski consulted on another TVS application reviewed at the Commission’s December 2021 meeting (TVS20-002 Cherry and Fried). 1,
2 His depth of knowledge on Torrey Pines and his familiarity 1 In December, the Commission suggested the use of an “independent third party” to report back with findings. But frankly, based on the tenor of correspondence, it seemed unlikely that we would be able to get agreement between the parties on the choice of an “independent” expert and have that person prepare a detailed report in the limited time available between the July and August meetings. We, therefore, proceeded with Mr. Wisniewski.
2 There was discussion at the December hearing about the applicants and the Whites sharing the cost of retaining an additional arborist. But again, in the interest of meeting the deadline of the August meeting, the Whites have, thus far, borne the cost. It is recognized that the applicants may claim that because the Whites are bearing the cost, that Mr. Wisniewski’s findings could be tainted. I would state that Mr.

Wisniewski’s credentials are impeccable and I also believe that the Deftos family themselves had originally considered employing him before they retained Mr. Walton as their arborist. 158 August 9, 2022 Item 01
Exhibit H
3010 September 19, 2022 September 19, 2022 Item 12 Item 12 Members of the Del Mar Planning Commission
August 3, 2022
Applications TVS21-002 and 003
Page # 2
with these particular trees made him an obvious choice to help us try to reach a resolution on the subject TVS applications.

The December 7, 2021 staff report noted that there were extensive efforts made to preserve the Torey Pines on the property when the White residence underwent DRB review in 1998. Additional background information on the tree-preservation requirements of the CVPP and of the White’s DRB approval is included in Attachment B.

It is clear that the care that staff and the DRB took in 1998 to protect the trees, and the conditions they attached to the DBB permit, were successful. The trees, including the one now referred to as Tree #1, survived construction and is a healthy and thriving specimen. Mr. Wisniewski as the [then] City Arborist, was instrumental in the efforts, so he has had familiarity with the trees. That familiarity and his depth of knowledge on Torrey Pines made him an obvious choice to help us try to reach a resolution on the current TVS applications.

Mr. Wisniewski has prepared a report (Attachment A to this letter), that lays out recommendations for implementing the recommendations in the Subcommittee’s report. As he explains in the report, his recommendations differ from those in the report submitted by Mr. Walton on behalf of the applicants and also differ from the White’s previous arborist, Mr. Safford.

Mr. Wisniewski’s report includes a series of recommendations both for reduction pruning and vista/view pruning to carry out the Subcommittee’s recommendations for improving /restoring the applicant’s views3. The challenge in meeting this objective is to do enough work to provide restoration but not at the expense of the long-term health of the tree. It is a delicate balance with a fine tipping point. But in the interest of trying to achieve a satisfactory resolution, our team is recommending moving as far toward that tipping point as possible, as quickly as possible. But, as was recognized by Commissioners in their December 2021 comments, the restoration will not occur in one fell swoop, but will instead take a series of pruning events.

In brief, Mr. Wisniewski’s report includes recommendations on the following:

1. Restoring views in the near-term through pruning for reduction of the height and width of the tree-crowns;

2. Vista/view pruning to create “window” views through and between the trees;

3. A schedule for pruning over the next two- through five-year timeframe to further restore views; and

4. Recommendations for improved fire safety.

Again, the graduated approach is recommended because, in Mr. Wisniewski’s expert opinion, and as generally accepted in the industry, doing all of the work in one visit would stress the trees toward decline.

As has been noted in correspondence and testimony, the Whites have already done extensive pruning (some at their expense, some shared), to respond the to the Deftos’ and Michael’s previous requests.

They have been and continue to be amenable to more pruning of the trees and they commit to carrying out the graduated schedule for view restoration proposed in the Wisniewski report. 3 A note on the term “pruning.” As a lay person, I had considered pruning to be the fine removal of leaves and dying buds from the flowers and bushes in my garden. Mr. Wisniewski has “educated” me that the term correctly applies to and is used to describe other cutting, including that of larger tree limbs. 159 August 9, 2022 Item 01 3021 September 19, 2022 September 19, 2022 Item 12 Item 12 Members of the Del Mar Planning Commission
August 3, 2022
Applications TVS21-002 and 003
Page # 3
But the Whites steadfastly oppose any requirement to remove Tree #1 as was suggested by the applicants’ arborist (“The most reasonable solution to restore a reasonable view is to remove this particular tree” - Page # 4 of 1-22-2022 report). The Whites also oppose measures that would be so extensive as to result in the tree’s demise, including the amount and methodology of cutting suggested in Mr. Walton’s reports.

I cannot recall a single instance during my nearly 30-year tenure with the City, nor in the years since, when the City required, either through a DRB review or a TSVS review, that a protected Torrey Pine tree be completely removed. We think it would be inappropriate and would set an unfortunate precedent for that practice to start here.

We respectfully ask that the Commission adopt the recommendations in the Wisniewski report to serve as the Restorative Action Plan for both TVS21-002 and 003. While this would establish the framework for tree pruning work, a subsequent document would also be required to lay out the details for implementation of the Restorative Action. This document could be prepared by staff working with the applicants and the Whites and could address issues such as:

1. Confirming the timing for the first-year view-restoration pruning;

2. Having qualified personnel positioned on the White, Deftos and Michaels properties to monitor the pruning, both to maximize the effectiveness of the view restoration and to protect the safety of the trees;

3. Setting a schedule for additional reduction pruning in the following years, in accordance with the Restorative Action Plan;

4. Creating a document to memorialize the White’s commitment to authorize the initial and future year(s) pruning;

5. A plan for staff review and documentation on the effectiveness of the Restorative Actions (perhaps assisted by a designated Planning Commissioner);

6. Selection of a licensed tree-care contractor to perform the work; and

7. Determining and collecting tree care service and monitoring costs per the Trees, Scenic Views, Sunlight Ordinance.

We hope that the information in this letter and its attachments will help the Commission in its decisions on the TVS applications.

Sincerely,
Attachments:

A - Report from consulting arborist Mark Wisniewski
B – Background information on tree-preservation requirements of the CVPP and of DRB 98-14 160 August 9, 2022 Item 01 3032 September 19, 2022 September 19, 2022 Item 12 Item 12 August 2, 2022
Harvey & Sheryl White
473 Ocean View Avenue
Del Mar, CA 92014
RE: White Residential Property
473 Ocean View Avenue, Del Mar, CA
View Restoration Plan
Wisniewski & Associates File No. 22-1005
Dear Mr. & Ms. White
The following is my proposed View Restoration Plan with supporting background information on the methodology used that you requested. This report is also intended to respond to the scenic view restoration recommendations of the Del Mar Planning Commission per their review of applications TVS-21-002 and TVS-21-003.

I submitted a report of my observations, concerns and recommendations for protection of the Torrey Pine trees during construction.

The following month after reviewing the construction drawings that were submitted for this project, I prepared an additional report of my observations, conclusions and additional recommendations.

WISNIEWSKI & ASSOCIATES

LANDSCAPE ARCHITECT - INDEPENDENT CONSULTING ARBORIST
2036 Countrywood Way - Encinitas, California 92024-5401 (760) 840-7501
Licensed Landscape Architect No. 3281
International Society of Arboriculture - Certified Arborist No. WE-0742A - Retired International Society of Arboriculture - Tree Risk Assessment Qualified - Retired 161 August 9, 2022 Item 01 3043 September 19, 2022 September 19, 2022 Item 12 Item 12 White Residential Property
View Restoration Plan
Wisniewski & Associates 22-1005
August 2, 2022
2 I also reviewed a large number of documents related to the Trees, Scenic Views and Sunlight Applications submitted by the Deftos and Michaels. The documents included City staff reports and other related documents. Also included were arborist reports from Robert Walton, Jr. and Ted Safford and also a report from the Planning Commission subcommittee.

This publication is periodically updated by a national committee of diverse industry professionals and is published by the Tree Care Industry Association, Inc.

The following selected terms are defined in the above cited publication.

10.1 arboriculture: The art, science, technology, and business of commercial, public, and utility tree care.

10.33 pruning: The selective removal of plant parts to achieve defined objectives.

10.38 reduction: Arboricultural term referring to decreasing branch length or plant height and/or spread.

10.39 reduction cut: A pruning cut that removes the larger of two or more branches or stems, or one or more codominant stems(s), to a live lateral branch, typically at least 162 August 9, 2022 Item 01 3054 September 19, 2022 September 19, 2022 Item 12 Item 12 White Residential Property
View Restoration Plan
Wisniewski & Associates 22-1005
August 2, 2022
3 one-third the diameter of the stem or branch being removed.

10.58 thinning: An arboriculture term used to describe selective pruning to reduce density of branches and foliage.

10.8 clean: Arboricultural term used to describe selective pruning to remove one or more of the following: dead, diseased, infested, rubbing, declining, detached and/or broken branches.

The following is from the 2008 version of the American National Standard for pruning.

It was not included in the 2017 version.

Since it is not defined every contractor who uses it has their own definition or explanation of “lacing”. This creates confusion and uncertainty about the intention and the outcome of the work.

With this in mind I propose a multi-year approach to restoring the views to the two properties while not overly stressing the trees and potentially leading to their decline.

There are five trees to be addressed based on the numbering system that has been established by Mr. Walton in his report for the Michaels. 163 August 9, 2022 Item 01 3065 September 19, 2022 September 19, 2022 Item 12 Item 12 White Residential Property
View Restoration Plan
Wisniewski & Associates 22-1005
August 2, 2022
4 Objective
Restore the scenic views to the fullest extent possible without excessive damage to the trees so that they remain viable. The proposed work schedules below describe a series of distinct pruning events over a five-year period which cumulatively will have success in restoring views. Spreading the view restoration pruning work out over the course of five years will minimize damage to the trees’ health.

Each Proposed Schedule of Work is a distinct pruning event and the work performed at one event is not intended to limit the described pruning work of any later event.

Proposed Schedule of Work
Winter 2022 - 2023
Limit the removal of live material from any tree during this even to a maximum of 20%.

Proceed with the pruning in the following order of work.

1. Clean the canopies of all five trees.

Then use reduction cuts to reduce the width of the west side of the canopy+/- 5’. Stop removing or reducing branches at the point when the downhill trees and vegetation block the view.
164 August 9, 2022 Item 01 3076 September 19, 2022 September 19, 2022 Item 12 Item 12 White Residential Property
View Restoration Plan
Wisniewski & Associates 22-1005
August 2, 2022
5 Next use reduction cuts to remove the tallest branches +/- 5’ deep into the canopy.

In time, with continued regular pruning, this tree will also become a skyline tree with framed views through the canopy.

Do no further work on the tree until the next pruning cycle.

7. The site shall be left in a clean condition and the debris shall be properly disposed of.

Winter 2023-2024
Limit the removal of live material from any tree during this event to a maximum of 20%.

Prior to scheduling the work, review the current conditions of the trees to determine if any modifications need to be made to the work plan.

Proceed with the pruning in the following order of work.

1. Clean the canopies of all five trees.

2. For Trees 1, 2, and 3 use reduction and thinning cuts to provide 10’ clearance from and above any chimney or flue pipe to reduce wildfire risk. See attached “San Diego Regional Urban Forest Clearance Standards for Trees”.
165 August 9, 2022 Item 01 3087 September 19, 2022 September 19, 2022 Item 12 Item 12 White Residential Property
View Restoration Plan
Wisniewski & Associates 22-1005
August 2, 2022
6 3. For Tree 1 maintain the enhanced view through the center of the tree where the foliage and branches are the least dense use reduction and thinning cuts to expand the view so that is +/-6’ wide and is open through the top of the canopy. See Photo No. 1.