Del Mar City Council Meeting Agenda
VIA TELECONFERENCE ONLY
1050 Camino del Mar, Del Mar, California
September 19, 2022 City Council Meeting
INFORMATION RECEIVED
AFTER THE COUNCIL AGENDA
WAS DISTRIBUTED
(“Red Dots”)
City of Del Mar
Memorandum
_______________________________________________________________________________________________________ TO: Honorable Mayor and City Council Members
FROM: Kseniia Izgarskaia, Associate Management Analyst
Joe Bride, Public Works Director
DATE: September 19, 2022
SUBJECT: Red Dot – Item 10: Modified Resolution Related to Tewa Court/10th Street Utility Undergrounding District Overhead Facilities Removal As a result of an additional review of the Resolution related to the Tewa Court/10th Street Utility Undergrounding District overhead facilities removal (Item 10 on the September 19, 2022, City Council regular meeting agenda) and in consultation with the City Attorney’s Office, several revisions are recommended in order for the Resolution to provide better notice of the actions proposed and to more closely track Del Mar Municipal Code (DMMC) language. The proposed revisions are intended to provide clarity and consistency with DMMC Chapter 23.54 in anticipation of setting a standardized template for similar undergrounding resolutions moving forward. The proposed revisions do not substantially affect the Resolution’s substance and the intended action but instead set out the action more clearly.
Attached are the revised Attachment A to the agenda report - Resolution 2022-XX Fixing the Times for Properties to be Ready to Receive Underground Service and for Removal of Overhead Facilities Within the Tewa Court/10th Street Underground Utility District; as well as Exhibit A – the redlined version of the Resolution with the recommended revisions.
Additionally, the revised Requested Action/Recommendation section of the agenda report should read as:
Staff recommends that the City Council: 1) Receive a Utility Undergrounding Project update; and 2) Conduct a public hearing to adopt a Resolution (Attachment A) Fixing the Times for Properties to be Ready to Receive Underground Service and for Removal of Overhead Facilities Within the Tewa Court/10th Street Underground Utility District, in accordance with Del Mar Municipal Code (DMMC) Section 23.54.030.
Attachment A – Revised Resolution 2022-XX (Clean Copy)
Exhibit A – Redlined Resolution 2022-XX
1 September 19, 2022 Item 10
RESOLUTION NO. 2022-XX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DEL MAR,
CALIFORNIA, FIXING THE TIMES FOR PROPERTIES TO BE READY
TO RECEIVE UNDERGROUND SERVICE AND FOR REMOVAL OF
OVERHEAD FACILITIES WITHIN THE TEWA COURT/10TH STREET
UNDERGROUND UTILITY DISTRICT
WHEREAS, on May 17, 2021, the City Council of the City of Del Mar adopted Resolution 2021-18 establishing an underground utility district designated as Tewa Court/10th Street District (the “UUD”); and
WHEREAS, following a duly noticed public hearing, the City Council found and determined that the public health, safety, and welfare required the removal of poles, overhead wires and associated structures, and underground installation of wires and facilities for supplying electric, communication and similar or associated services in the UUD; and WHEREAS, the City Council further found that the creation of the UUD was in the general public interest and included public benefits such as an improved pedestrian and bicycle environment, increasing foot traffic, reduced risk of fire or power outage from downed poles or lines, and improved aesthetics within the district; and WHEREAS, pursuant to Section 23.54.030 of the Del Mar Municipal Code, after establishment of an underground utility district the City Council shall, by subsequent resolution, fix the time within which property in the district must be ready to receive underground service and by which overhead electric or communication facilities shall be removed; and WHEREAS, a reasonable time shall be allowed for removal and underground installation, having due regard for the availability of labor, materials, and equipment necessary for such removal and for the installation of such underground facilities; and WHEREAS, after the date fixed by the City Council for removal of overhead facilities, it will become unlawful for any person or utility to erect, construct, place, keep, maintain, continue, employ or operate overhead electric or communication facilities, subject to limited exceptions set forth in the Municipal Code; and
WHEREAS, on February 7, 2022, following a public bid solicitation process, the City Council awarded a construction contract to Blue Pacific Engineering Construction Inc. (“Blue Pacific”) for the undergrounding of overhead facilities in the UUD; and WHEREAS, the City of Del Mar has conducted an analysis of the construction progress by Blue Pacific and by property owners in the UUD and, based on the work progress, has identified December 31, 2022, as a feasible and reasonable date by which properties in the district must be ready to receive underground service and by which overhead facilities shall be removed.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Del Mar, California, that December 31, 2022 is hereby established as the date by which both (A) property in the Tewa Court/10th Street District, duly established as an underground utility district in the 2 September 19, 2022 Item 10
Resolution No. 2022-XX
City of Del Mar, must be ready to receive underground service and (B) by which overhead electric or communication facilities shall be removed.
BE IT FURTHER RESOLVED, that the City Council hereby finds that the above date fixed by this Resolution constitutes a reasonable time for removal and underground installation, based on the construction progress to date and on the availability of labor, materials, and equipment necessary for such actions.
BE IT FURTHER RESOLVED, that, within fifteen (15) days of the adoption of this Resolution, the City Clerk is hereby directed to notify all affected property owners, as shown on the last equalized assessment roll, and all affected utilities, that that the work required to change the facilities on the premises so as to receive electric, communication, or community antenna television or similar or associated service provided or to be provided by the utility company shall be accomplished on or before the date set forth in this Resolution, December 31, 2022, and that all poles and related overhead structures within the district are to be removed by the same date, in accordance with Section 23.54.070(B) of the Del Mar Municipal Code.
BE IT FURTHER RESOLVED, that the City Clerk is hereby directed to record a certified copy of this Resolution with the office of the County Recorder, in accordance with Section
23.54.030 of the Del Mar Municipal Code.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Del Mar, at a Regular Meeting held this 19th day of September 2022. _____________________________
Dwight Worden, Mayor
City of Del Mar
APPROVED AS TO FORM:
____________________________
Leslie E. Devaney, City Attorney
City of Del Mar
3 September 19, 2022 Item 10
Resolution No. 2022-XX
ATTEST AND CERTIFICATION:
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
CITY OF DEL MAR
I, SARAH KRIETOR, Administrative Services Manager/City Clerk of the City of Del Mar, California, DO HEREBY CERTIFY, that the foregoing is a true and correct copy of Resolution No. 2022-XX, adopted by the City Council of the City of Del Mar, California, at a Regular Meeting held the 19th day of September, 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
____ _____
Sarah Krietor, Administrative Services
Manager/City Clerk
City of Del Mar
4 September 19, 2022 Item 10
RESOLUTION NO. 2022-XX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DEL MAR,
CALIFORNIA, ESTABLISHING FIXING THE TIMES FOR
PROPERTIES TO BE READY TO RECEIVE UNDERGROUND
SERVICE AND FOR REMOVAL OF OVERHEAD FACILITIES WITHIN
THE TEWA COURT/10TH STREET UTILITY UNDERGROUND UTILITY
DISTRICT OVERHEAD FACILITIES REMOVAL DATE
WHEREAS, on May 17, 2021, the City Council of the City of Del Mar adopted Resolution 2021-18 establishing an underground utility district designated as Tewa Court/10th Street District (the “UUD”) as a designated and declared Underground Utility District of the City of Del Mar; and
WHEREAS, following a duly noticed public hearing, the City Council found and determined that the public health, safety, and welfare required the removal of poles, overhead wires and associated structures, and underground installation of wires and facilities for supplying electric, communication and similar or associated services in the Underground Utility District; and
WHEREAS, the City Council further found that the creation of the UUD wais in the general public interest and includeds public benefits such as an improved pedestrian and bicycle environment, increasing foot traffic, reduced risk of fire or power outage from downed poles or lines, and improved aesthetics within the district; and WHEREAS, the removal of all poles, overhead wires and associated overhead structures, and the underground installation of wires and facilities for supplying electric, communication, and similar or associated service within the Underground Utility District is required in order to fulfill the goal of the Underground Utility District; and WHEREAS, pursuant to Section 23.54.030 of the Del Mar Municipal Code, after establishment of an underground utility district the City Council shall, by subsequent resolution, fix the time within which property in thesaid district must be ready to receive underground service and by which poles, overhead wires and associated overhead structureselectric or communication facilities shall be removed shall be set by subsequent resolution, pursuant to Section 23.54.030 of the Del Mar Municipal Code; and
WHEREAS, a reasonable time shall be allowed for removal and underground installation, having due regard for the availability of labor, materials, and equipment necessary for such removal and for the installation of such underground facilities; and WHEREAS, after the date fixed by the City Council for removal of overhead facilities,and by which poles and other structures shall be removed shall signify that the district is fully formed, and at which time it will become unlawful for any person or utility to erect, construct, place, keep, or maintain, continue, employ or operate above-groundoverhead electric or communication facilities, beyond the date established by the City Council for removal of such facilitiessubject to limited exceptions set forth in the Municipal Code; and 5 September 19, 2022 Item 10
Resolution No. 2022-XX
WHEREAS, on February 7, 2022, following a public bid solicitation process, the City Council awarded a construction contract to Blue Pacific Engineering Construction Inc. (“Blue Pacific”) for the undergrounding of overhead facilities in the UUD; and WHEREAS, the City of Del Mar has conducted an analysis of the construction progress by Blue Pacific and by property owners in the Underground Utility District and, based on the work progress, hasand identified December 31, 2022, as a feasible and reasonable date by which properties in the district must be ready to receive underground service and by which overhead facilities shall be removed.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Del Mar, California, that:
The above recitals are true and correct.
December 31, 2022, is hereby established as the date by which both (A) property in the Tewa Court/10th StreetUnderground Utility District, duly established as an underground utility district in the City of Del Mar, must be ready to receive underground serviceis fully formed and (B) by which all poles, overhead wires and associated overhead structures, and the underground installation of wires andelectric or communication facilities for supplying electric, communication, and similar or associated service within the Underground Utility District shall be removed.
BE IT FURTHER RESOLVED, that the City Council hereby finds that the above date fixed by this Resolution constitutes a reasonable time for removal and underground installation, based on the construction progress to date and on the availability of labor, materials, and equipment necessary for such actions.
BE IT FURTHER RESOLVED, that, within fifteen (15) days of the adoption of this Resolution, tThe City Clerk is hereby directed to notify all affected property owners, as shown on the last equalized assessment rolls, and all affected utilities, of the adoption of this Resolution within fifteen (15) days after the date of such adoption, and that that the work required to change the facilities on the premises so as to receive electric, communication, or community antenna television or similar or associated service provided or to be provided by the utility company shall be accomplished on or before the applicable date set forth in thise Resolution, December 31, 2022, in accordance with Section 23.54.070 of the Del Mar Municipal Code, and that. This notice shall also state the date all poles and related overhead structures are to be removed from within the district are to be removed by the same date, in accordance with Section 23.54.070(B) of the Del Mar Municipal Code.
BE IT FURTHER RESOLVED, that tThe City Clerk is hereby directed to record a certified copy of this Resolution with the office of the County Recorder, in accordance with Section
23.54.030 of the Del Mar Municipal Code.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Del Mar, at a Regular Meeting held this 19th day of September 2022. 6 September 19, 2022 Item 10
Resolution No. 2022-XX
_____________________________
Dwight Worden, Mayor
City of Del Mar
APPROVED AS TO FORM:
____________________________
Leslie E. Devaney, City Attorney
City of Del Mar
ATTEST AND CERTIFICATION:
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
CITY OF DEL MAR
I, SARAH KRIETOR, Administrative Services Manager/City Clerk of the City of Del Mar, California, DO HEREBY CERTIFY, that the foregoing is a true and correct copy of Resolution No. 2022-XX, adopted by the City Council of the City of Del Mar, California, at a Regular Meeting held the 19th day of September, 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
____ _____
Sarah Krietor, Administrative Services
Manager/City Clerk
City of Del Mar
7 September 19, 2022 Item 10
From: Anne Farrell
Sent: Sunday, September 18, 2022 8:49 PM
To: Dan Quirk <[email protected]>; Dave Druker ([email protected]) <[email protected]>; Dwight Worden ([email protected]) <[email protected]>; Terry Gaasterland ([email protected]) <[email protected]>; Tracy Martinez <[email protected]> Cc: Harold Feder ([email protected]) <[email protected]>; [email protected]; Art Olson ([email protected]) <[email protected]>; John Graybill ([email protected]) <[email protected]>; Pat Bone ([email protected]) <[email protected]>
Subject: 1128 Cuchara / Encroachment Permit EP22-067
Honorable Mayor Worden and Members of the City Council:
As members of the City’s former Ad Hoc Committee for design review, we write to you once again to bring attention to an important issue that is highlighted by the item on your 9/19/2022 agenda, regarding a requested encroachment permit into the public right-of-way at 1128 Cuchara Drive.
We strongly concur with the Planning Department’s recommendation that the encroachment permit for this ADU should be denied, due to its failure to satisfy Finding 6 of DMMC Section
23.28.070 and also Council Policy 110. We have watched this project with concern throughout the construction process, and due to its obvious incompatibility with the neighborhood, we have concluded that—as a result of this project—it is appropriate to ask the City of Del Mar to consider changes to the ADU Ordinance and possibly the Zoning Code.
While most of the ADU projects completed to date in Del Mar have been either reasonably well integrated into their neighborhoods or not visible to the public, this project is a blatant exception. In our opinion, the ADU Ordinance was somewhat hastily approved in Del Mar in order to comply with the State mandate. In the meantime, other cities—such as Santa Barbara —have gone further than Del Mar in successfully integrating architectural design and other important criteria into their ADU ordinances.
It is commendable that a city the size of Santa Barbara (population 90,000+) conducts residential design review and consistently produces thoughtful ordinances to protect its community character.
You can click here
(https://content.qcode.us/lib/santa_barbara_ca/alerts/documents/ordinance_6058.pdf) for a link to Santa Barbara’s ADU ordinance for the coastal zone.
We wanted to highlight a few areas where the application of some of the key features of the Santa Barbara ADU ordinance could have led to a much-improved subject project and would improve future ADU projects in Del Mar:
• Setbacks—In Santa Barbara, the lot area that fronts a street—whether primary or secondary frontage—is considered a front yard for the purposes of determining the setback. No ADU in Santa Barbara could be built as close to the street (only 4 feet) as the subject project is to Cuchara Drive. There is another ADU under construction on Highland, just around the corner from the subject project, that is also set back a mere 4 feet from Highland. Both of these ADU projects, in our opinion, have crossed the line—due to inadequate setbacks—to the point that they are potentially detrimental to property values in the neighborhood. • Design Style—The Santa Barbara ordinance provides that new detached ADU’s shall be compatible with the design of the primary residential unit regarding style, fenestration, materials, colors, and details if the accessory dwelling unit is located in the front yard or if any portion of the accessory dwelling unit is located within 20 feet of the primary residential unit. We feel that the subject ADU fails this standard to the detriment of the surrounding neighborhood character.
1 September 19, 2022 Item 11
• Other Standards—The Santa Barbara ADU ordinance also contains useful sections on privacy standards and hillside grading, among other topics. Although not applicable to this project, a grading limit of 250 cubic yards for an ADU as in Santa Barbara would be well worth considering.
It should be noted that there has already been an ADU project approved in Del Mar that required grading of over 400 cubic yards and the project impacts caused considerable neighborhood consternation.
We appreciate the opportunity to comment on this very important issue, and we hope that our suggestions will be considered in the spirit of doing what is best for our community by protecting our neighborhoods from incompatible development.
Sincerely,
Harold Feder, Richard Jamison, Anne Farrell,
John Graybill, Arthur Olson, and Patricia Bone
Longtime residents of Del Mar
Below are 3 photographs showing the
situation on Cuchara:
2 September 19, 2022 Item 11
3 September 19, 2022 Item 11
4 September 19, 2022 Item 11
5 September 19, 2022 Item 11
1 Melinda Gould
From: City Clerk Mail Box
Subject: FW: Zoom Information for 9/19 Del Mar City Council Meeting From: Island Style <[email protected]>
Sent: Sunday, September 18, 2022 12:46 PM
To: Sarah Krietor <[email protected]>; [email protected] Subject: Re: Zoom Information for 9/19 Del Mar City Council Meeting 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.
Sarah, Can you tell me what time on Monday? I will be in the office, have a 10am meeting, but should be free after that.
If you can add this description to the submittal:
To minimize the impact of a solid wood fence, we have proposed an open stainless cable fence which will have green flowering vines at 36" center to center spacing and wood posts to match the gate. The replacement gate has a new trellis over it to signify "entry" and is very similar to one directly across the street. The original fence and gate had been in place since the mid 1940's in this exact location. We are only seeking to replace the old tired wooden fence along Cuchara.
I do not have any additional drawings other than the presentation drawings previously submitted.
Thank you,
Kevin Farrell AIA NCARB
Farrell Design Assoc. Inc.
Island Style Architects
[email protected]
760-436-2642
https://www.farrelldesignassociatesinc.com
-----Original Message-----
From: Sarah Krietor <[email protected]>
To: [email protected] <[email protected]>
Cc: Madeline Shute <[email protected]>
Sent: Thu, Sep 15, 2022 12:10 pm
Subject: Zoom Information for 9/19 Del Mar City Council Meeting Hi Kevin, I’m the City Clerk for Del Mar and am reaching out with information regarding the hearing for Encroachment Permit EP 22-067 at 1128 Cuchara Drive. A Zoom link will be sent to you the morning of the meeting and the email will come directly from Zoom. You will have a maximum of 10 minutes for your presentation. If you plan to use a PowerPoint or any presentation materials, please email me a copy by 12pm on Monday, 9/19. You can plan to share your screen with a presentation or I can assist you. Please let me know your preference prior to the meeting.
Please let me know if you have any questions about the meeting logistics.
Thank you,
Sarah
Sarah Krietor
Administrative Services Manager/City Clerk
City of Del Mar | Administrative Services
1050 Camino del Mar
Del Mar, CA 92014
1 September 19, 2022 Item 11
2 858.375.9517 | 7 858.755.2794 | [email protected] Please consider the environment before printing this e-mail. **Effective July 1, 2021, City Hall is open to the public for limited in-person public services including general walk-in services and payments Monday-Thursday, from 7:30 AM- 5:30 PM and Friday from 7:30 AM- 4:30 PM. Planning and Building services will resume in-person at the City Hall public counter on a limited basis only Monday and Wednesday between 1:00 PM to 5:30 PM. All remote services will continue to be provided during regular City hours. Please check our City website at www.delmar.ca.us for more information** 2 September 19, 2022 Item 11
1 Melinda Gould
From: Camilla Rang <[email protected]>
Sent: Wednesday, September 14, 2022 6:47 PM
To: City Clerk Mail Box
Subject: Supporting Item 12 on City Council agenda for Sept 19, 2022 Follow Up Flag: Follow up
Flag Status: Flagged
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.
Dear City Council,
I support a de novo hearing for the Deftos in regards to the Torrey Pines at the White´s property on 473 Ocean View Avenue that is blocking the view for the Deftos on 225 Torrey Pines Terrace. This case is one of the most clear cut TSVS cases I have seen and should not be a difficult one to decide, supporting the Deftos. I applaud our Planning Department, especially Mr Farrell and Mr. Bakker, who read the rules correctly and came to the right decision and I thank them, and the City Council, for all the work you put in for our city.
It is interesting how all tree owners who are being dragged to the Planning Commission and City Council as a result of a TSVS application all "cherish" trees, but never enough to plant trees right in front of their own house, blocking their own view. The trees are always deliberately planted so they only block their neighbors´ view, never their own. The day I see someone having planted a row of Torrey Pines blocking their own ocean view, I will support them to keep their trees untouched. The trees on the White´s property are all planted north and east on their property so that they do not interfere with the White´s view, only their neighbors northeast of them.
It is impossible to live in Del Mar without knowing about the TSVS rules. If the owners of the Torrey Pines trees really had cared about the Torrey Pines, they would have kept them trimmed yearly to a lower canopy to begin with so that this situation never would occur, that the trees´health are endangered.
The rules of the TSVS encourages tree owners of not keeping their trees trimmed and out of the way for their neighbors´views. Tree owners can completely disregard all attempts from their neighbors appeals to have the trees trimmed. They have nothing to lose. Look at this case. TWO neighbors had to send in a $4,000 application EACH with no cost to the tree owners. Once the case was ruled in favor of the Deftos and the other neighbor, the Michaels, the tree owner can now sit back and have their trees trimmed for free for the rest of their lives because the applicant now has to pay the trimming forever. Something isn't right. The TSVS rules have to change. Once a tree owner has "lost a case", they should have to pay for the trimming, not the applicant.
I support the Planning Commission's decision to approve a de novo hearing for the Deftos. 1 September 19, 2022 Item 12
2 I also would like to request that the TSVS aftermath costs are being looked over and changed to shift the cost to the tree owner when it is being ruled in favor of the applicant.
Sincerely,
Camilla Rang
Del Mar
2 September 19, 2022 Item 12
Del Mar City Council,
We have reviewed the staff report for our appeal and respond with the following points:
1. We agree with city staff that the City Council should hear our application in a de novo hearing.
2. The question of whether the TSVS Ordinance allows or is intended to allow for a multi-year view restoration plan is confounded by apparently conflicting language in provision 23.51.080 [Restorative Work and Allocation of Costs] and provision 23.51.110 [Enforcement] of the TSVS Ordinance. Both provisions of the TSVS Ordinance are modifications of the Town of Clyde Hill TVS Ordinance, one of the Ordinances from other cities used to model the TSVS Ordinance (the other is the Tiburon Ordinance).
The Compliance provision of the Town of Clyde Hill TVS Ordinance states:
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.
The similar Enforcement provision [DMMC 23.51.11] of the Del Mar TSVS Ordinance uses the exact same language and adds following, apparently to account for the recommendation to only trim Torrey pines in the winter:
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.
We believe this language in both Ordinances makes clear the intent that the work must be completed within 90 days after the final action on the Application (unless the trees are Torrey pines in Del Mar, in which case the next winter), not over multiple years. Views that are unreasonably obstructed must be promptly restored.
The Work of Correction and Allocation of Costs provision of the Town of Clyde Hill TVS Ordinance states:
The tree owner will, at her/his sole discretion, choose the company by which she/he wishes the work done and shall order the work done within 30 days after receiving the complainant’s deposit or such other period of time as the commission may determine to be reasonable and appropriate.
In the context of the paragraph, the phrase “order the work done” seems to refer to placing an order to have the work done (hiring an arborist and scheduling the work), rather than having the work completed. If it were to instead mean “order the work to be completed,” it would directly conflict with the Compliance provision that gives 90 days to comply with any work. It would 1 September 19, 2022 Item 12
also be unreasonable to ever expect the work to be completed in that short period of time (30 days), as anyone who has scheduled work with an arborist will agree.
The similar Restorative Work and Allocation of Costs provision [DMMC 23.51.080] of the Del Mar TSVS Ordinance slightly modifies this to read:
the Subject Tree owner will then, at her/his sole discretion, choose the company by which she/he wishes the work done, as found acceptable to the City, and shall order the work done within 30 days after receiving the Applicant's deposit or such other period of time as the Planning Commission may determine to be reasonable and appropriate.
It then adds the following:
If the Subject Tree owner does not have the work completed within the time period indicated by the Planning Commission or within 30 days, the City will order the work completed and charge the Subject Tree owner with any costs incurred above the estimate selected.
The addition of this sentence is what creates the confusion since it conflicts with the Enforcement provision [DMMC 23.51.080]. We think it was an error/oversight in the drafting of the Ordinance. Again, it would seem unreasonable to ever require that an arborist complete the work in 30 days.
We think this discrepancy in the TSVS Ordinance should be resolved and the City Council should clarify the whether the work to restore a view must occur within 90 days after final action on the application (as stated in the Enforcement provision) or within 30 days after receiving the Applicant's deposit or such other period of time as the Planning Commission may determine to be reasonable and appropriate (as stated in the Restorative Work and Allocation of Costs provision).
Which of these is the actual intent of the Ordinance has a very large impact on how the Ordinance is enforced and the expectations of an Applicant.
As is stands, a multi-year plan to restore a view is in conflict with the Enforcement provision [DMMC 23.51.080] and the Ordinance states that “View and/or Sunlight Restorative Actions must be consistent with all other provisions of this Chapter DMMC 23.51.070.B].
Respectfully,
Michael and Angela Deftos
2 September 19, 2022 Item 12
PO Box 116
Del Mar, CA 92014
Monday, September 19th, 2022
City Council
City of Del Mar
1050 Camino Del Mar
Del Mar, CA 92014
Re: Item 12 for 19 September 2022 City Council Hearing; TVS21-002 Dear Honorable Mayor Worden and Members of the City Council:
A growing conflict around the purpose and management of the mature Torrey Pine forest in the city is evident. This dispute – the Appeal to the Planning Commission’s Decision on TVS21-002 – is an example of it, not an isolated case. Some residents wish to reduce significantly the number and volume of the trees in their neighborhood, while other residents value the timeless presence of the species around them, especially the larger and older specimens.
Of course, all recognize that the preservation of this unique natural heritage is a responsibility of our town, and, to this end, our Municipal Code (23.50.020.E.2) and City Charter (11.13.010) guide City Councilmembers as they uphold their duty to their constituents.
Scenic views are precious and are of material monetary value. But the Torrey Pines – the rarest native pine in the USA – lives nowhere else naturally but around us. So how do we co-exist when one side has no voice and nowhere else to go?
A possible solution is to look to what other nearby cities have done with similar dilemmas. Just up the coast in Laguna Beach, a “City Arborist” role has been created in order to have a neutral expert assure a “mix between conservation and preservation,” with the “responsib[ility] for the long-term care and management” of that city’s “urban forest.” Such an individual here could provide independent counsel to decision-makers, design a sensible multi-year general plan for Del Mar’s unique tree landscape, and actively and prudently manage our urban forest on a day-to-day basis.
At present, residents are having to pay third party arborists to buttress their claims for tree removal, an unbalanced situation that leads to obvious conflicts of interest, dramatically decreasing the weight of the specialists’ opinions. Certain residents are also assuming the financial burden of care for mature trees on their properties that benefit entire neighborhoods as well as our city as a whole.
1 September 19, 2022 Item 12
To my eyes, mature Torrey Pine trees are declining markedly in number around town. The request to Appeal TVS21-002, then, may well not be the last that you hear about this matter. I thus urge you, Honorable Mayor Worden and Members of the City Council, to begin to consider more impactful and longer-term solutions to this increasing tension between scenic views and our native trees.
Respectfully submitted,
Jason Dempsey
2 September 19, 2022 Item 12
Del Mar City Council,
We have reviewed Mr. Birnbaum and Wisniewski’s responses to our appeal and wish to make the following points in return.
DRB of White’s House
The White’s representatives argue that the DRB approval of the house more than 20 years ago should weigh heavily in decision making regarding how to restore our view. Mr. Birnbaum, Mr.
Wisniewski and Mr. Dominy were all involved in the DRB and approval of the building plans.
They argue that since the trees were required to be preserved during lot development, and the house was specifically built around the trees, that the White’s now have a right to keep them.
However, our house was built specifically around our view, which the City gave us a right to preserve, and the Whites do not have a right to unreasonably obstruct our view.
The DRB approval (for the Rosengartens, the Whites subsequently bought the lot and plans) allowed the Whites to build a three story house in a narrow sandstone canyon in the CVPP area. Canyons are protected by the Community Plan and were considered a scenic amenity in the CVPP. A few years before, a Torrey pine tree on the canyon floor was cut down without a permit, and two more were severely pruned, making more room for a house (not by the Roengartens or Whites). The original CVPP required elevated construction on the lot and did not allow any grading or concrete slabs. The City approved a rezone of the lot (R98-02), allowing for 2,072 square feet of grading and a smaller amount of excavation on the slopes of the canyon to “tuck in” the house to the sides of the canyon. Mr. Wisniewski said the grading and excavation would jeopardize the life and health of the trees. The house was allowed to be built so close to the trees that they lost their status as protected Torrey pines, despite their preservation being required for lot development. There seems to have been little consideration for the burdens the trees might impose as they grew to become much larger trees so close to the house. After the house was built, one of the trees fell down in a storm. A previous arborist of the Whites told us the soil was water logged and the roots rotten. Harvey White attributed the loss of the tree to the construction of his house in a letter documented in our application:
“Had that tree been looked after by an arborist when the house was built it would probably not have been a victim of the storms.” (Harvey White letter to Linda Deftos, February 10, 2018)
Mr. Dominy mentions other houses he was involved in building with trees presumably close to the house that subsequently died.
The Whites cited the compromised health of the trees as the reason why they could not maintain them so they did not obstruct our view. Now these trees extensively unreasonably obstruct the high-quality primary scenic views of two properties on Torrey Pines Terrace, views that were intended to be protected by the CVPP, and are protected by the TSVS Ordinance. The trees now grow over the roof of the house, making them a fire hazard, and there is the threat of falling branches causing property damage, as attention was recently drawn to. 1 September 19, 2022 Item 12
The Whites representatives now argue that the DRB approval should give the Whites the right to keep all of their remaining Torrey pines and have them continue to unreasonably obstruct our views. The DRB approval of the house, allowing grading in the canyon and placing the house very close to the trees, lacked foresight and has lead to the depletion of many natural resources of our neighborhood: the scenic amenity of a sandstone canyon, a Torrey pine tree, and the protected status of three remaining Torrey pines. Now it has contributed to the depletion of the scenic views of multiple neighbors.
Deftos wants to remove a Torrey pine tree
Mr. Birnbaum claims we have expressed from the beginning that the only outcome acceptable to us is removal of tree #1, a Torrey pine tree. That is inaccurate. At the beginning, having no training in arboriculture, we had no knowledge of how the trees could be altered to substantially restore our view, though we were skeptical that it could be done by trimming. Instead, it was the opinion of certified consulting arborist Robert Walton (http://www.rca394.com) that the only way to substantially restore our view involved removal of one of the subject trees. This was also the opinion of certified arborist Ted Safford, the White’s previous arborist. We believe it is also consistent with the Wisniewski plan, which the weight of evidence supports will not substantially restore our view.
Mr. Birnbaum seems to imply we selfishly want to deplete the urban forest to benefit ourselves.
That is not true. Want to restore our view that has been unreasonably obstructed. We have no interest in depleting the urban forest. Indeed, our family planted the 3 now protected Torrey pines trees that grow on our property on Torrey Pines Terrace, and have graciously responded when neighbors have asked us to trim them. We also planted 9 more Torrey pine trees on our family property on Racetrack View Drive near the terminus of Crest Canyon, and volunteered to crown reduce them to protect the view of our neighbor behind us. That’s a total of 12 Torrey pine trees we have contributed to Del Mar and its environs without burdening our neighbors. How many families in Del Mar have done that?
Is the tree lion-tailed?
It is a fact that tree #1 has minimal green growing branches on the lower two-thirds. Mr. Walton characterized the tree as having been lion-tailed (“the lower part of the tree has had the green (growing tips or apical meristems) stripped out”). The White’s previous arborist, Ted Safford, said it was lion-tailed (“as the tree continues to grow higher, the Deftos’ view will also be enhanced as the stripped, lion-tailed lower canopy comes into view”). Mr. Wisnewski contends the absence of green growing tips on the lower two-thirds is because of shading. If that is the case, which is not the opinion of two other arborists, the shading is presumably due to the proximity of the house to the tree. Either way, the Whites and/or their house have caused, or substantially contributed to, this unnatural form.
Other issues
We apologize for our misinterpretation of the bark beetle repellent. 2 September 19, 2022 Item 12
To the best of our knowledge, our family has never shared any tree trimming costs with the Whites. We are skeptical they pruned them every other year. The evidence shows they were not responsive to our requests to trim them until they were under the threat of the TSVS Ordinance, when it was too late.
Respectfully,
Michael and Angela Deftos
3 September 19, 2022 Item 12