Del Mar City Council
November 14, 2022

Del Mar City Council Meeting Agenda

VIA TELECONFERENCE ONLY
1050 Camino del Mar, Del Mar, California
November 14, 2022 City Council Meeting

INFORMATION RECEIVED

AFTER THE COUNCIL AGENDA

WAS DISTRIBUTED
(“Red Dots”)
Meeting
31 January 2012
US Army Corps of Engineers
BUILDING STRONG®
And Taking Care Of People!
San Diego County, CA (Encinitas -
Solana Beach) Project
Del Mar City Council Meeting
14 November 2022 - 4:30 PM
1 November 14, 2022 Item 02
BUILDING STRONG®
Introductions
• City of Solana Beach
• Mayor Lesa Heebner
• Greg Wade, City Manager
• Leslea Meyerhoff, Project Manager
• City of Encinitas
• Todd Mierau, Coastal Zone Program Administrator
• Chris Webb, Coastal Scientist
• US Army Corps of Engineers
• Susie Ming, USACE Project Manager
• Chuck Mesa, USACE, Coastal Engineering Chief
• Caleb Lodge, USACE Lead Coastal Engineer
• Larry Smith, USACE Environmental
2 November 14, 2022 Item 02
BUILDING STRONG®
And Taking Care Of People!
The San Diego County, CA
(Encinitas and Solana Beach)
Project is a 50-year effort to:
3 Project Purpose
 Reduce coastal storm damages to property and infrastructure along the study area shoreline and the bluff top, prior to the need for emergency action.
 Improve public safety in the study area by reducing the threat of lifethreatening bluff failures caused by wave action against the bluff toe.  Reduce coastal erosion and shoreline narrowing to improve recreational opportunities for shoreline users within the study area. 3 November 14, 2022 Item 02
4 BUILDING STRONG®
Daphne Street
G Street
Tide Park
Southern Boundary of
Solana Beach
50-ft wider berm
7,800 ft alongshore
Renourishment
Cycle = 5 yrs (9
events)
Initial Volume =
340,000 cy
Renourishment
Volume = 220,000 cy
Encinitas
150-ft wider berm
7,200 ft alongshore
Renourishment
Cycle = 10 yrs (4
events)
Initial Volume =
700,000 cy
Renourishment
Volume = 290,000 cy
Solana
Beach
Authorized Project
4 November 14, 2022 Item 02
BUILDING STRONG®
And Taking Care Of People!
The alternatives were modified in important ways to address comments of the resource agencies and stakeholders prior to authorization. Some of those revisions are:

1. Reduction of project beach and sand widths in both Cities:
• Encinitas project size reduced from 100’ to 50’
• Solana Beach project size reduced from 200’ to 150’

2. Additional Monitoring
• Addition of physical monitoring in between the receiver sites; • Addition of two new lagoon monitoring transects as requested by the Los Penasquitos Lagoon Foundation;
• Addition of biological monitoring at borrow sites;

3. Additional surfing monitoring as requested by the Surfrider Foundation
5 Project Revisions
5 November 14, 2022 Item 02
BUILDING STRONG®
And Taking Care Of People! 6
Solana
Beach Encinitas
• Bluff failures
are on-going
(large and
small
• Public hazard
exists at public
beaches
Ongoing Bluff Failures
6 November 14, 2022 Item 02
BUILDING STRONG®
• Development of Design Documents including Design Report, Plan and Specifications
• 1 -Year Pre-Construction Monitoring Initiated Fall of 2022 and includes:
• Shoreline Monitoring
• Biological Monitoring
– Rocky Reefs
– Rocky Intertidal Reefs
– Subtidal Rocky Reef Habitat
– Surfgrass
• Surfing Monitoring
Preconstruction Engineering
and Design Phase
7 November 14, 2022 Item 02
BUILDING STRONG®
And Taking Care Of People!
Monitoring Plan
8 November 14, 2022 Item 02
BUILDING STRONG®
And Taking Care Of People!
Monitoring Plan
9 November 14, 2022 Item 02
BUILDING STRONG®
• Total Authorized Project Volume Needed:
• Encinitas 3-4 MCY
• Solana Beach 2-3 MCY
• Borrow Sites – SO-6, SO-5 and MB-1
• SO-6 not considered for initial
construction.
• SO-5 Volume Available (approx.): 8 MCY
• Borrow Site Monitoring
• Seabed Morphology
• Benthic Habitat Quality
• Schedule and Frequency
• Bathymetric survey performed in Fall 2022
only
• Water and benthic quality monitoring
performed in Fall 2022 and Spring 2023
• SANDAG 2012 project included postconstruction monitoring 10 Borrow Sites
SO-6
SO-5
10 November 14, 2022 Item 02
BUILDING STRONG®
And Taking Care Of People!

SHORELINE MONITORING PLAN
• Includes 21 transects
(spring and fall)
• Started Fall 2022
• Lagoon entrance monitoring
will be confined to those
lagoon entrances
immediately adjacent and/or
within the project limits:

Batiquitos Lagoon, San Elijo
Lagoon, San Dieguito
Lagoon and Los
Penasquitos.
• Includes 2 additional
transects north of the Los
Penasquitos Lagoon
• DM-0565 (Reestablished)
• DM-0535 (New)
11 November 14, 2022 Item 02
BUILDING STRONG®
And Taking Care Of People!

POTENTIAL LAGOON SEDIMENTATION MITIGATION
• Potential Lagoon Sedimentation Mitigation will be based on post construction monitoring and analysis of data collected of the lagoon entrances to evaluate potential impacts and will focus on:
• physical inspections;
• assessment of lagoon closure; and
• maintenance dredging records
• Monitoring will indicate if the beach fills result in increases in dredge quantities and/or inlet closure rates. Based on USACE assessment, should the monitoring results indicate significant closure/restrictions to lagoon entrances and significant increases in dredging requirements, mitigation measures (dredging) to offset lagoon sedimentation may be implemented.
• Potential mitigation costs are included in the initial construction cost estimate.
12 November 14, 2022 Item 02
BUILDING STRONG®
• Project estimated to be advertised as an option in the USACE FY23 Portland District’s West Coast Hopper Dredge Annual Contract – Portland’s annual contract for Operation and Maintenance Dredging – Advertisement estimated in February 2023
– San Clemente Shoreline Project (option)
– Estimated costs saving on mobilization/demoblilization for hopper dredge • Construction duration estimated 4-6 months
• Constructionwindow – September through March

CONSTRUCTION (ESTIMATED)
13 November 14, 2022 Item 02
BUILDING STRONG®

QUESTIONS
14 November 14, 2022 Item 02
1 Melinda Gould
From: City Clerk Mail Box
Subject: FW: Sandag Rail Realignment Presentation, Clerks file # 1506-1 From: Alice McNally <[email protected]>
Sent: Sunday, November 13, 2022 5:17 PM
To: City Clerk Mail Box <[email protected]>
Cc: Dwight Worden <[email protected]>; Terry Gaasterland <[email protected]>; Tracy Martinez <[email protected]>; David Druker <[email protected]>; Dan Quirk <[email protected]> Subject: Fwd: Sandag Rail Realignment Presentation, Clerks file # 1506-1 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.

Begin forwarded message:

From: Alice McNally <[email protected]>
Subject: Sandag Rail Realignment Presentation, Clerks file # 1506-1 Date: November 13, 2022 at 5:15:16 PM PST
To: Alice McNally <[email protected]>
Please watch this short Swiss Train video again before tonight’s Sandag presentation. https://youtu.be/muPcHs-E4qc
This is our change to insist it be down right with Climate change, protecting our neighbors homes and our protected open space as our first priorites.

Don’t accept any half way measures to save money,
America can do it right. The Swiss already have.

Alice McNally
1332 Stratford Ct.

Del Mar, CA 92014
1 November 14, 2022 Item 03
LOSSAN Rail Realignment
Del Mar City Council
November 14, 2022
1 November 14, 2022 Item 03
$300M
over five years to
advance
engineering and
environmental
work
| 2
State Infrastructure Investment
2 November 14, 2022 Item 03
Vulnerable
Infrastructure
& Public
Safety • Bluffs stabilized by
SANDAG under two
phases that added
support columns, sea
walls, improved
drainage, and made
necessary repairs.
| 3
3 November 14, 2022 Item 03
We need a long-term solution to
support the entire corridor
• SANDAG has implemented 15.6 miles
of double-track since 2008.
• Continual investments in bluff
stabilization for the past 20+ years
• Anticipated Investment Corridor-Wide
The LOSSAN Rail Corridor
| 4
The LOSSAN (Los Angeles – San Diego – San Luis Obispo)
Rail Corridor
4 November 14, 2022 Item 03
• Over 8 million
passengers and
$1 billion in goods
annually
• Supports freight
service growth at
ports
Regional, State, and National Significance
| 5
5 November 14, 2022 Item 03
Part of the U.S.

Department of
Defense Strategic
Rail Network
(STRACNET)
| 6
Regional, State, and National Significance
6 November 14, 2022 Item 03
| 7
San Diego Regional Rail Alignment Study
• Reimagine the
rail corridor –
improve safety,
capacity, speed
• Solve the
problems of today
• Create resiliency
for tomorrow
• Implement
Regional Plan
vision
Conceptual Rendering
of Transit Leap Train
7 November 14, 2022 Item 03
Del Mar Alignment Alternatives
DRAFT
Note: Two options for the Del Mar Heights alignment were studied crossing either ABOVE or BELOW Carmel Valley Road
• Five tunnel alignment alternatives
developed in 2017 when study began
• Refinements made during 2020 updated
with the following goals:
– Higher operating speeds in line with the 2021
Regional Plan (~110 mph corridor-wide)
– 30 Minutes from Oceanside to Downtown
| 8
8 November 14, 2022 Item 03
Evaluation Criteria
| 9
• Travel Time
• Environmental Consequences
• ROW Impacts and Acquisitions
• Constructability, Construction Impacts and Duration
• Other Community Impacts
• Connectivity and Travel Demand
• Safety Improvements
• Capital Costs
• Railroad Operation Impacts (During Construction)
• Operational Complexity (Post-Construction)
• Operation and Maintenance Costs
| 9
9 November 14, 2022 Item 03
Refining two alignment alternatives based
on engineering, construction, and operational
considerations, and stakeholder input
to reduce impacts to the community
Current Phase of Work
| 10
DRAFT
10 November 14, 2022 Item 03
Outreach to date
| 11
• Continuous Outreach Activities
– www.keepsandiegomoving.com/Lossangroup/lossan-intro.aspx (ongoing) – sandag.mysocialpinpoint.com/railalignmentstudy
(Since 2021)
– Social Media (Ongoing)
– LOSSAN Rail Corridor Proposed Improvements
Fact Sheet (2020)
• Past Outreach Activities
– Conceptual Engineering and Environmental
Constraints for Double Track Alignment
Alternatives between Del Mar Fairground and
Sorrento Valley Study (December 2017)
– Del Mar City Council Presentation (February 2020)
– SANDAG Board of Directors Meeting – Accepted
funding/ Initiated Alternative Alignment Study
(July 2020)
– Del Mar City Council Presentation (February 2020)
– SANDAG Board of Directors Meeting – Accepted
funding/ Initiated Alternative Alignment Study
(July 2020)
– Del Mar City Council Update (July 2020)
– NCTD Update on Alternative Alignment Study
(April 2021)
– Del Mar City Council Update on Long-Term
Realignment (May 2021)
– Del Mar City Council Update on Long-term
Realignment (July 2021)
– SANDAG Board of Directors Meeting – Accepted
$300 million /Initiated Environmental/Engineering
Studies (September 2022)
– LOSSAN Press Conference (October 2022)
– NCTD Board Meeting (October 2022)
– SANDAG Community Fair (October 2022)
11 November 14, 2022 Item 03
Anticipated Outreach
| 12
• Fall 2022: Begin education campaign and listening sessions – Social media messaging
– Videos
– Tabling at existing events, Del Mar Farmers Market
– Coastal Connections Study event – November 14
• Winter 2022: Share study findings / present two alternatives – First formal public meeting in early 2023 (format TBD) – Continue education campaign
• Spring 2023: Technical study notifications / establish local presence / listen mode
– “Storefront” office location in Del Mar
12 November 14, 2022 Item 03
Project Timeline
Open to
Public
Place in
service
By 2035
Final
Design
& ROW
Complete
engineering work
and secure right of
way (partially funded)
2026
Preliminary
Engineering &
Environmental
Advance engineering
work and obtain
environmental
document
2023
Construction
Build track and
structures (not
funded)
Planning 2028
Analyze
concepts
2020
| 13
Public Outreach
13 November 14, 2022 Item 03
Next Steps
| 14
• Preliminary engineering, technical studies and biological surveys • Document environmental impacts of the project
• Corridor-wide improvements
14 November 14, 2022 Item 03
Stay connected with SANDAG
Explore our website
SANDAG.org
Email: [email protected]
Follow us on social media:
@SANDAGregion @SANDAG
15 November 14, 2022 Item 03
1 Melinda Gould
From: Alice McNally <[email protected]>
Sent: Monday, November 14, 2022 7:31 PM
To: City Clerk Mail Box
Cc: Dwight Worden; Terry Gaasterland; Tracy Martinez; David Druker; Dan Quirk Subject: Something to add to Sandag Rail Realignment Presentation, Clerks file # 1506-1 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.

Please note:

Dan Quirk's concern for the track closure in San Clement points to the importance of water table and sea level rise due to Climate change and fossil fuels. This is important to address in the environmental documents.

How does Sandag propose dealing with this????
A
On Nov 13, 2022, at 5:16 PM, Alice McNally <[email protected]> wrote:

Begin forwarded message:

From: Alice McNally <[email protected]>
Subject: Sandag Rail Realignment Presentation, Clerks file # 1506-1 Date: November 13, 2022 at 5:15:16 PM PST
To: Alice McNally <[email protected]>
Please watch this short Swiss Train video again before tonight’s Sandag presentation. https://youtu.be/muPcHs-E4qc
This is our change to insist it be down right with Climate change, protecting our neighbors homes and our protected open space as our first priorites.

Don’t accept any half way measures to save money,
America can do it right. The Swiss already have.

Alice McNally
1332 Stratford Ct.

Del Mar, CA 92014
1 November 14, 2022 Item 03
1 Melinda Gould
From: James Hindman <[email protected]>
Sent: Monday, November 14, 2022 10:14 AM
To: City Clerk Mail Box
Subject: Red dot comment on Encroachment Permit EP22-082(SANDAG) 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.

My name is Jim Hindman. My wife Marianne and I have owned property at 128 Little Orphan Alley for over 19 years. Our ocean view from our house is through the west end of Little Orphan Alley. We are very concerned with any view blockage or restricted bluff access at the west end of Little Orphan Alley for “water meter, solar panels, and irrigation equipment” as stated in the encroachment permit details received in the mail. Please note our objection to this location due to our concern over view blockage and/or restricted bluff access. Thank you.

Jim & Marianne Hindman
949-300-7000
Sent from my iPhone
1 November 14, 2022 Item 10
City of Del Mar
Memorandum
________________________________________________________________________________________________________ TO: Honorable Mayor and City Council Members
FROM: Madeline Shute, Assistant Planner
Karen Brindley, Planning and Community Development Director DATE: November 17, 2022
SUBJECT: Red Dot Item 10: Encroachment Permit (EP) EP22-082 – SANDAG Bluff Stabilization V Improvements Relating to Shoreline Protection, Drainage Improvements, and Required Mitigation (Beach access for construction at 18th Street and adjacent to APNs: 299-240-01, 299-240-23) Item 10 on the November 14, 2022, City Council agenda is a request to adopt the resolution approving SANDAG’s request for an Encroachment Permit EP22-082 to authorize permission to work in the public right of way and on public property as necessary to construct the bluff stabilization improvements relating to shoreline protection, drainage improvements, required mitigation, and authorizing access for construction along the beach, south bluff, and adjacent to City-owned public property at APNs 299-240-01 and 299-240-23 in accordance with the California Coastal Commission (CCC) Federal Consistency Certification.

The resolution has been revised to clarify City and State jurisdiction areas related to the project. As revised, the CCC Federal Consistency Certification dated July 22, 2022, has been incorporated by reference within the resolution.

Attachment: Revised Resolution including Exhibit A CCC Federal Consistency Certification
1 November 14, 2022 Item 10
RESOLUTION NO. 2022-XX

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DEL
MAR, APPROVING ENCROACHMENT PERMIT EP22-082 AND

WAIVING THE PLANNING AND LAND USE APPLICATION FEE

FOR A LONG-TERM MAJOR ENCROACHMENT PERMIT FOR

IMPROVEMENTS RELATING TO THE BLUFFS STABILIZATION V
PROJECT (APNs: 299-240-01, 299-240-23) IN DEL MAR,

CALIFORNIA
WHEREAS, the City of Del Mar (“City”) is the owner of the public rights-of-way way along at the street ends that provide access to the beach and shoreline; and WHEREAS, the beach below the ordinary high water mark (mean high tide line) is held in public trust by the State Lands Commission; and WHEREAS, San Diego Association of Governments (“Applicant”) has filed an application for an Encroachment Permit (EP22-082) seeking approval for various improvements, more specifically described in the Agenda Report and attached Encroachment Permit plans, in the public right-of-way adjacent to parcels owned by the City of Del Mar, APNs: 299-240-01 and 299-240-23 (“Project”) parcels owned by the City of Del Mar; and
WHEREAS, Del Mar Municipal Code (DMMC) Chapter 23.28 requires an Encroachment Permit (EP) for permission to work in the public right-of-way and on public property and for any private improvements within the public right-of-way; specifically any improvements that extend at least 12 inches above the level of the sidewalk, roadway, or adjacent grade and requires City Council approval; and
WHEREAS, Section 23.28.070 of the DMMC provides that an Encroachment Permit may be approved or conditionally approved only if the decision maker makes all of the findings set forth in Section 23.28.070(C); and
WHEREAS, in accordance with the National Environmental Policy Act (NEPA), the project is categorically excluded from NEPA pursuant to Title 23 CFR 771.118(c)(8) which covers “maintenance, rehabilitation, and reconstruction of facilities that occupy substantially the same geographic footprint and do not result in a change in functional use, such as:
improvements to bridges, tunnels, storage yards, buildings, stations, and terminals; construction of platform extensions, passing track, and retaining walls; and improvements to tracks and railbeds.”; and
WHEREAS, on July 22, 2022, the California Coastal Commission (Coastal Commission) issued a federal consistency certification for the SANDAG/NCTD bluff stabilization project to stabilize the bluffs and existing railroad facilities within the NCTD railroad right-of-way, State public trust lands, and City of Del Mar property and right-of-way; and
2 November 14, 2022 Item 10
Resolution 2022-XX

WHEREAS, on November 14, 2022, the City Council of the City of Del Mar held a duly noticed public hearing to review the referenced entitlements, and at which time all persons desiring to be heard were heard; and
WHEREAS, evidence was submitted and considered to include without limitation:
a. Plans submitted by the applicant;
b. Written information submitted with the application;
c. Agenda Report, dated November 14, 2022, incorporated by reference as though fully set forth herein;
d. The Coastal Commission Federal Consistency Determination dated July 22, 2022, incorporated by reference as though fully set forth herein; e. Additional information submitted during the hearing.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Del Mar that Encroachment Permit EP22-082 is hereby approved based on the Federal Consistency Certification dated July 22, 2022, as set forth in “Exhibit A” to this Resolution and the following findings in accordance with DMMC Chapter 23.28.070 (C):

Finding 1. The proposed encroachment will not endanger the public health, safety or welfare, or the surrounding property.

The proposed improvements will maintain existing public use of the surrounding right-ofway and will not obstruct accessibility or endanger public health, safety, or welfare. The bluff stabilization and drainage improvements are necessary to protect the public health, safety and welfare.

Finding 2. The proposed encroachment will not unreasonably interfere with the intended use of a City Right-of-Way or Easement.

The proposed access and improvements will not unreasonably interfere with the public use of the beach and park. The Applicant is required to coordinate with the Community Services Department during the entirety of the construction process to ensure public safety and public beach access and recreation impacts are minimized to the maximum extent practicable.

Finding 3. The proposed encroachment will not have an adverse impact on the welfare of the community or on the community’s appearance or aesthetics.

The California Coastal Commission issued a federal consistency certification for the proposed bluff stabilization improvements relating to shoreline protection, drainage improvements, and required mitigation in the SANDAG/NCTD railroad right-of-way, State public trust lands, and the City of Del Mar property and right-of-way to ensure stabilization of the 1.6-mile railroad corridor for increased reliability of existing passenger rail services in 3 November 14, 2022 Item 10
Resolution 2022-XX

the Los Angeles-San Diego (LOSSAN) corridor. The City’s authority for the Encroachment Permit is tied to authorization of access for construction along the beach, south bluff, and adjacent to private property at APNs 299-240-01 and 299-240-23 (from 15th Street south to Carmel Valley Road). The proposed improvements are generally consistent with the character of the existing bluff stabilization and railroad easement improvements and generally maintain the size and locations of existing features of the site as implemented in prior bluff stabilization project phases.

Finding 4. The proposed encroachment will not cause an unnecessary change in the character of the community.

The California Coastal Commission issued a federal consistency certification for the proposed bluff stabilization improvements relating to shoreline protection, drainage improvements, and required mitigation in the SANDAG/NCTD railroad right-of-way, State public trust lands, and the City of Del Mar property and right-of-way to ensure stabilization of the 1.6-mile railroad corridor for increased reliability of existing passenger rail services in the Los Angeles-San Diego (LOSSAN) corridor. The proposed encroachments are generally within the same locations as the previous shoreline protection, drainage improvements, and bluff stabilization improvements implemented in prior bluff stabilization project phases. No change in use is proposed to occur.

Finding 5. The proposed encroachment will not be a detriment to the interests of the general public.

The California Coastal Commission issued a federal consistency certification for the proposed bluff stabilization improvements relating to shoreline protection, drainage improvements, and required mitigation in the SANDAG/NCTD railroad right-of-way, State public trust lands, and the City of Del Mar property and right-of-way to ensure stabilization of the 1.6-mile railroad corridor for increased reliability of existing passenger rail services in the Los Angeles-San Diego (LOSSAN) corridor. The City’s authority for the Encroachment Permit is tied to authorization of access for construction along the beach, south bluff, and adjacent to private property at APNs 299-240-01 and 299-240-23 (from 15th Street south to Carmel Valley Road). The proposed improvements will not permanently interfere with any present or future public use. Proposed improvements do not interfere with existing vehicular or pedestrian mobility of the surrounding right-of-way. The pedestrian path improvements, in particular, will enhance mobility along existing pathways in the City of Del Mar.

Finding 6. The proposed encroachment will not convert significant areas of public property to private use.

The proposed encroachments will not convert any existing public use areas to private use.

All proposed improvements will enhance existing public use of these areas.

NOW, THEREFORE, BE IT FURTHER RESOLVED by the City Council that, given the public benefits from the bluff stabilization project, including reducing City costs for 4 November 14, 2022 Item 10
Resolution 2022-XX

construction of the City’s Powerhouse Park pathway lighting project, the City Council waives the planning and land use application fee associated with EP22-082.

NOW, THEREFORE, BE IT FURTHER RESOLVED by the City Council that approval of EP22-082 shall be subject to the following conditions and the conditions of approval set forth in the Federal Consistency Certification dated July 22, 2022, as set forth in “Exhibit A” to this Resolution:

General Conditions:

GC-1 [Business License]
Prior to commencement of any work on site, all contractors and subcontractors shall obtain a valid City of Del Mar Business License. A copy of the approved Encroachment Permit shall be kept on site at all times, along with copies of the required Business Licenses for all contractors and subcontractors.

GC-2 [Development authorization limited to plan set]
This permit is granted based on submitted application materials dated October 11, 2022 and so identified by the staff of the Del Mar Planning Department. Revisions to these plans and/or any proposals for modification to the project shall require review and prior authorization from the appropriate entities of the City of Del Mar.

GC-3 [Compliance with City noise regulations - Allowed hours and dates of construction activity]
The applicant/owner and all parties involved with implementation of the project shall comply with the regulations of the DMMC with regard to construction noise. The regulations stipulate that all construction activities are limited to the following periods:
between 7:00 a.m. and 7:00 p.m. Monday through Friday and between 9:00 a.m. and 7:00 p.m. on Saturdays. Construction activities are prohibited during other hours and on Sundays and City Holidays. The City’s noise ordinance, Chapter 9.20 of the Del Mar Municipal Code, includes the dates of City Holidays, and can be viewed on the City’s web page (www.delmar.ca.us).

Additionally, no excavation or trenching shall occur within a City right-of-way on days when City of Del Mar City offices are closed. Those days include all Saturdays and Sundays and all days on which City Holidays are observed.

GC-4 [Compliance with Conditions]
The applicant/owner hereby agrees to do all work and otherwise comply with the terms and conditions of this permit, and all applicable rules and regulations of the City of Del Mar and/or other public agency.
5 November 14, 2022 Item 10
Resolution 2022-XX

GC-5 [Revocation of permit due to noncompliance with conditions] This permit may be revoked by the City if noncompliance is noted to the applicant and satisfactory action is not taken by the applicant or his/her agents to achieve compliance within twenty-four (24) hours of notice.

GC-6 [No Transfer in Property Interest]
The granting of an encroachment permit pursuant to this chapter shall not constitute the transfer or relinquishment of any ownership or interest held by the City over the public right-of-way, nor shall such permit confer any vested or proprietary rights upon the holder of the permit beyond the right to utilize the encroachment area in the manner authorized by the permit and subject to all of the conditions set forth herein.

The applicant/owner agrees to protect all survey markers and monuments in the vicinity of the work and agrees to replace any markers or monuments, if damaged, to the satisfaction of the Public Works Director.

General Planning Encroachment Conditions:

GEP-1 [EP – Excavation Scheduling]
No excavation or trenching shall occur within a City right-of-way on days when City of Del Mar City offices are closed. Those days include all Saturdays and Sundays and all days on which City Holidays are observed.

GEP-2 [EP – Indemnification]
By accepting this permit and implementing the development authorized herein, the applicant agrees to indemnify, defend and save the City of Del Mar, its authorized agents, officers, representatives and employees harmless from and against any and all penalties, liabilities, annoyances, or loss resulting from claims or court action and arising out of any accident, loss or damage to persons or property happening or occurring as a proximate result of any work undertaken under the permit granted pursuant to the application or by reason of the permittee's installation, operation, maintenance or removal of the encroachment.

GEP-7 [EP - Permit Expiration/Potential for Permit Extension] This permit and the authorization for use/work within a City right-of-way herein granted shall expire three years from the anticipated start date, on June 1, 2026.

The permittee may request a single Extension of Time of an approved Encroachment Permit by submitting a written request to the City Manager setting forth the reason that substantial work on the permit cannot be commenced by the scheduled expiration date.

The City Manager shall grant the extension unless he/she determines that there has been 6 November 14, 2022 Item 10
Resolution 2022-XX

a change in circumstances since the time of the original grant of the permit which would create an inconsistency between the proposed encroachment and the provisions of DMMC Chapter 23.28. No extension shall be granted for a period greater than one (1) year.

GEP-8 [EP - Work to be performed by a Licensed Contractor] All work authorized by an Encroachment Permit shall be performed by a licensed contractor from one of the following classes: “A” General Engineering Contractor, “C34” Pipeline Contractor or a “C42” Sanitation System Contractor. A copy of such a license shall be provided to the City prior to the commencement of work, and shall be retained at the project site. This requirement may be waived by the Director when the work to be performed is limited to minor improvements or maintenance for residential property adjacent to the City right-of-way or easement and when the work will be performed by the resident or owner of the benefited residential property. This information shall be provided prior to the commencement of any work in a public right-of-way.

GEP-9 [EP - Compliance with CAL-OSHA]
The permittee shall obey and enforce all safety orders, rules, regulations, and recommendations of the Department of Industrial Relations of the State of California, CAL-OSHA, applicable to the work and shall comply with all applicable laws, ordinances, codes, and regulations. Any omission on the part of the Director to specify protective measures or devices in the Encroachment Permit shall not excuse the permittee from complying with all applicable requirements of law.

GEP-10 [EP - Timely Performance of Work]
If any part of the work performed under an Encroachment Permit is not completed within the period indicated in either the submitted application materials or the conditions of approval of the Encroachment Permit, the Director of Public Works may notify the person performing the work, in writing, to complete the work within forty-eight (48) hours thereafter, legal holidays excepted. If the work is not completed within this time period, the Director of Public Works shall have full power to perform the work, including such measures as will restore the disturbed area to a safe and passable condition until the work can be completed. The cost thereof, including any inspection and administrative overhead costs incurred by City, shall be assessed against the permittee.

GEP-13 [EP - Notification of Utility Owner]
The applicant shall notify the appropriate Public Utility a minimum of seventy-two (72) hours prior to performing any work on or adjacent to any public utility. All such work shall be done only with authorization and with inspection by the appropriate utility owner.

GEP-14 [EP - No authorization for street closure]
7 November 14, 2022 Item 10
Resolution 2022-XX

The permit does not authorize closure of any road or street, unless specifically stated on the permit.

GEP-16 [EP - Notification of Neighbors Prior to Commencement of Traffic Lane Disruption]
Where the proposed work will involve a temporary traffic lane closure or detour, the applicant shall notify all neighbors along the street in the area in which work will take place a minimum of five (5) calendar days prior to the commencement of any work. The notification required herein shall be provided as follows:
a. Copies of written notice shall be distributed at the properties with frontage along the street where the traffic lane disruption will occur and at properties with frontage along the affected street that are within 200 (linear) feet of the area of traffic lane disruption. A copy of the notice to be provided shall be submitted for City approval prior to distribution, and
b. Temporary signs shall be placed along both sides of the street in the area where traffic lane disruption will occur and at the points 500 feet beyond the ends of the affected street area.

The notice required herein shall be provided / installed (as applicable) to the satisfaction of the Director of Planning and Community Development.

Public Works Conditions:

PW – [Custom Condition]
SANDAG is required to submit a Construction Safety Plan to the Coastal Commission and City of Del Mar. The purpose of the plan is to coordinate the scheduled construction work with City operations and minimize/avoid beach recreation impacts to the public.

All permanent irrigation related equipment shall be located within the NCTD right-of-way.

PW-1 [Notification of Public Works Department prior to and after Completion of Work] The applicant agrees to notify the Director of Public Works in writing at least forty-eight (48) hours in advance of time when work authorized in this permit will be started.

Applicant shall state the EP number, original date of approval and a short description of the work. Submit via email to [email protected]. Additionally, upon completion of the work, the applicant agrees to immediately notify the Director of Public Works in writing of such completion. Any improvement or modification of the right-of-way shall be subject to inspection and approval of work from the Public Works Director’s representative.

PW-3 [USA Markout]
8 November 14, 2022 Item 10
Resolution 2022-XX

At least 72 hours prior to the excavation of any area within a right-of-way, the applicant shall contact Underground Services Alert (USA) at (800) 422-4133 for the purpose of identifying the location of buried utilities so as to avoid disturbance thereof. All proposed dig or trench areas shall be pre-marked with white paint prior to contacting for USA markout. No work shall commence until USA markout has occurred.

The permittee is advised that the locations of utility lines may vary from those shown on project plans and that coordination with the appropriate utility companies is, therefore, imperative. Any damage or repair thereof to utility lines caused as a result of project implementation shall be the permitee’s responsibility. The applicant shall be responsible for removing or blocking out all pavement markings installed for the project immediately upon completion of the work authorized in the Encroachment Permit.

PW-4 [Traffic Control Plan]
Prior to the approval of the Encroachment Permit, the contractor shall submit a plan for traffic control prepared by a registered Civil or Traffic Engineer. The plan shall be subject to the review and written approval of the Public Works Director. The plan shall be prepared in accordance with the “Manual for Uniform Traffic Control Devices (MUCTD) in Construction and Maintenance Zones.” The plan shall also be prepared and implemented to ensure that traffic control measures will be in place so as to protect pedestrian and motorists from any construction, equipment, or other related activities, (including parked vehicles) due to construction. If a detour for traffic is needed, a Traffic Control plan should be submitted for review and approval by the Public Works Director prior to the start of work.

PW-9 [Traffic Control]
The applicant shall be responsible for informing the public of the traffic conditions existing within the construction area at all times by placement of appropriate warning and advisory signs. The applicant shall also provide and maintain all traffic control and safety items.

Permittee assumes sole and complete responsibility for the job and site conditions during the course of construction, including safety of all persons and property. This requirement shall apply continuously twenty-four (24) hours per day and shall not be limited to normal work hours. All stationary items (e.g., dumpsters, heavy equipment, construction supplies) that will be in the public right-of-way for long periods of time, including night time, needs to have the proper reflective delineation.

Community Services Conditions:

CS-1 [Custom Condition]
Prior to the commencement of work, and during the entire construction process, the applicant shall coordinate with the Community Services Department to ensure public safety and minimize public beach access and recreation impacts throughout the duration of the project.
9 November 14, 2022 Item 10
Resolution 2022-XX

CS-2 [Lifeguard Tower and Sight Distance]
Construction work zone barriers and equipment shall maintain sight distance from lifeguard towers. This effort is to be coordinated with the Community Services Department Lifeguard division and may be modified as necessary.

CS-3 [Flag Person and Vehicle Operations on Public Beach] The Applicant shall provide a minimum of one (1) flag person to be present during all hours of operation and movement of heavy equipment and/or vehicles on the sandy beach. In addition, during construction, the Applicant shall be subject to all safety measures required by the Community Services Department and notify staff of days that require beach transit beyond the initial transit to and return from the work area. Additional driving conditions for beach driving include: speed not in excess of five (5) mph, avoid driving on the high tide wrack line, avoid disruption of wildlife, and yield safely to pedestrians at all times.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Del Mar, State of California, at a Regular Meeting held on the 14th day of November 2022. ____________________________
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
10 November 14, 2022 Item 10
Resolution 2022-XX

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 14th day of November 2022, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:
____ _____
Sarah Krietor, Administrative Services
Manager/City Clerk
City of Del Mar
11 November 14, 2022 Item 10

STATE OF CALIFORNIA - NATURAL RESOURCES AGENCY GAVIN NEWSOM, GOVERNOR

CALIFORNIA COASTAL COMMISSION
455 MARKET STREET, SUITE 300
SAN FRANCISCO, CA 94105
FAX (415) 904-5400
TDD (415) 597-5885
July 22, 2022
Keith Greer
Principal Regional Planner
SANDAG
401 B Street, Suite 800
San Diego, CA 92101
Subject: Consistency Certification CC-0005-21 (Del Mar Bluffs Stabilization Project 5, Del Mar, San Diego County)
Dear Mr. Greer:

On June 8, 2022, the California Coastal Commission (Commission) conditionally concurred with the above-referenced consistency certification. The Commission found that the project was consistent with the California Coastal Management Program. The conditions included in the Commission’s concurrence are attached to this letter. Please contact me at [email protected] should you have any questions regarding this matter.

Sincerely,
Wesley Horn
Environmental Scientist
12 November 14, 2022 Item 10

July 22, 2022
Consistency Certification CC-0005-21

CONDITIONS

1. Authorization Term.
a. Authorization for all seawalls included in this consistency certification (including those subject to emergency repairs in 2021) shall expire thirty (30) years from the date of Commission action (i.e., June 8, 2052) or upon relocation and legal abandonment of the sections of railroad at issue in this action, whichever occurs first. No less than six months prior to the expiration of the authorization, SANDAG shall submit to the Coastal Commission a complete coastal development permit application or consistency certification to remove all of the seawalls and rip-rap included in this consistency certification and to restore the affected areas to natural conditions, except as allowed pursuant to subsection (b). If a complete permit application or consistency certification is filed before the end of the authorization period, the authorization period shall be automatically extended until the time the Commission acts on the consistency certification or permit. b. If relocation and legal abandonment of the rail line has not been completed in 30 years and SANDAG wishes to keep any portion of the seawalls or rip-rap in place beyond the 30 year time period, it must submit a complete, new consistency certification no less than six months prior to the expiration of the authorization. At that time, the Commission will need to consider authorization for the retention of the seawalls in light of the then-existing standard of review, including assessment of any needed mitigation for the ongoing impacts of the structure(s) and an evaluation of actions to reduce or eliminate those impacts. If a complete consistency certification is filed before the end of the authorization period, the authorization period shall be automatically extended until the time the Commission acts on the consistency certification.

2. Coastal Access and Recreation. SANDAG shall develop and implement a capital improvement project, similar to that described in Exhibit 10 (“Draft CIP Sheet”), to complete planning, design, environmental review, and construction of three projects to provide and improve safe public coastal access and recreation in the project area through: (1) enhancement of the north-south trail system east of the rail track on the top of the bluff between Seagrove Park and 4th Street; (2) construction of a CPUCapproved pedestrian rail crossing near 7th Street or 11th Street; and (3) construction of a beach accessway at or between 7th and 11th Streets that does not involve significant grading or alteration of the bluff beyond the work that is being performed as part of the Del Mar Bluffs Stabilization Project 5. The design of these three coastal access and recreation improvement projects shall be informed by the Coastal Connections Study, and construction of each access project shall not begin until all necessary authorizations for that project are obtained, such as from the California Public Utilities Commission, City of Del Mar and North County Transit 13 November 14, 2022 Item 10

July 22, 2022
Consistency Certification CC-0005-21
District. Unless extended by the Executive Director of the Coastal Commission for good cause and based on diligent pursuit of project goals and milestones, SANDAG shall commence the construction of these three coastal access and recreation improvement projects within 36 months of the beginning of construction on the Del Mar Bluffs Stabilization Project 5 and complete construction within 60 months of the beginning of construction on the Del Mar Bluffs Stabilization Project 5. An extension by the Executive Director shall not exceed 24 months. A request by SANDAG for an extension beyond 24 months shall be subject to review and concurrence by the Commission.

3. Mitigation for Permanent Impacts to Wetlands. PRIOR TO COMMENCEMENT OF CONSTRUCTION, SANDAG shall provide updated mitigation accounting tables, for the review and concurrence of the Executive Director, that demonstrate adequate credits have been released from the Resource Enhancement Mitigation Program (REMP) of the North Coast Corridor Public Works Plan/Transportation and Resource Enhancement Program (NCC PWP/TREP) to mitigate for all permanent losses to wetland habitat that would result from the project at a ratio of 1:1 (area created: area lost).

4. Gnatcatcher Habitat Avoidance. No project construction activities shall be carried out within 300 feet of identified areas of potential California gnatcatcher habitat (as shown in Exhibit 9) during the nesting season (February 15 to August 31).

5. Construction Safety Plan. PRIOR TO COMMENCEMENT OF CONSTRUCTION, SANDAG shall submit a plan for the review and concurrence of the Executive Director that describes the methods (including signs, fencing, posting of security guards, etc.) which accounts for pedestrian safety around the active construction sites and/or staging areas during all project operations. A person(s) shall be onsite to safely detour pedestrian and/or vehicular traffic around active construction sites.

Construction is prohibited during weekends from the Saturday of Memorial Day weekend through Labor Day inclusive, except to the extent necessary to protect life and property. Maintenance of equipment and material storage is permitted during weekends and during non-daytime hours (i.e., from one-hour after sunset to onehour before sunrise).

6. Construction Staging and Storage. SANDAG shall locate and configure all designated areas for the storage and staging of project materials, equipment and project personnel vehicles in a manner that avoids, and if avoidance is infeasible, minimizes, loss of public parking spaces on public streets in the City of Del Mar and within the Torrey Pines State Beach parking lot.

7. Structural Appearance.
a. PRIOR TO COMMENCEMENT OF CONSTRUCTION, SANDAG shall
submit a plan for the review and concurrence of the Executive Director to 14 November 14, 2022 Item 10

July 22, 2022
Consistency Certification CC-0005-21
monitor and address the potential visual impacts of the Del Mar Bluffs Stabilization Project No. 5 upper bluff stabilization components in the event that they are exposed and visible from the blufftop and/or the public beach as a result of earth movement or other circumstances. SANDAG shall also monitor and address the potential visual impacts of the seawalls in the event that they are vandalized (e.g. graffiti). SANDAG shall carry out the approved plan, which shall include the following requirements:
i. Yearly for three years after construction, and then tri-annually until the seawalls are removed, SANDAG shall monitor the visual impacts of the Del Mar Bluffs Stabilization Project No. 5 project’s upper bluffs stabilization components. If the project’s upper bluff stabilization components are exposed and viewable from the public beach below the site, then SANDAG shall submit photographs to the Executive Director within 30 days of exposure identifying the extent of the exposure. Within 30 days of submitting photographs identifying the extent of the exposure of the components. Exposed components shall be colored in such a way that the result would be a natural, mottled appearance or, in SANDAG’s discretion, SANDAG shall install a “breakaway” skirt wall to cover exposed earth and/or components. The breakaway skirt shall be colored in such a way that the result would be a natural, mottled appearance. SANDAG shall contact the Coastal Commission for a determination of whether or not the installation of the low “breakaway” skirt wall requires Commission concurrence. ii. A plan to address the vandalism by regularly monitoring for graffiti or other visual changes and to promptly clean off or otherwise remedy the visual impacts caused by the vandalism.
15 November 14, 2022 Item 10
Statement for City Council Hearing
Michael and Angela Deftos
TVS21-002
(Slides 1-5)
Eleven months ago, the Planning Commission made a unanimous finding that our primary scenic view is extensively unreasonably obstructed by three Torrey pines growing on the property of Harvey and Sheryl White. The City then referred us to Mr. Walton to recommend a view restoration plan. Mr. Walton recommended removal of tree #1 and crown reduction of trees #2 and #3. This plan would have substantially restored our view. He said thinning the canopy of tree #1 would not substantially restore our view because it's too thick and dense. He said crown reduction cannot be used to lower its height because the tree had been lion-tailed with the green growing tips stripped from the lower branches. He said the tree could have been easily kept lower as late as 6 to 8 years ago. Our family asked the Whites starting more than 10 years ago to maintain their trees so they would not obstruct our view, but they largely dismissed us (“Maybe the removal of dead branches will help you”).
(Slides 6-7)
It is unfortunate that restoring our view requires removal of a Torrey pine, but that is the White’s fault. That would not be the case if they had maintained their trees so they did not obstruct our views. Because they did not, the view which our family previously enjoyed since 1974 was lost. Even with removal of tree #1, our view will still be substantially obstructed by trees #2 and #3, but at least we would get the most valuable portion back. Fortunately, the Ordinance allows a requirement for replacement plantings to mitigate tree removal. We fully endorse that and would be happy to pay for replacement Torrey pines in the White’s backyard or elsewhere else, including on our property. These could be maintained going forward such that they do not unreasonably obstruct neighbors views.
(Slides 8-9)
The Planning Commission rejected the view restoration plan recommended by Mr.

Walton. Instead, they prioritized preservation of the White’s trees over restoration of our view.

Their premise was that they had to “make every effort” to preserve the White’s trees because they are Torrey pines. But that is contrary to the explicit instructions of the Ordinance. The Ordinance ascribes relatively little significance to the status of subject trees as Torrey pines when determining appropriate restorative action. It is just one of eleven unweighted factors. Once a view has been determined to be unreasonably obstructed, restoring the view is the priority, not preserving the subject trees.
1 1 November 14, 2022 Item 11
(Slide 10)
This premise is also not consistent with the City’s approach to Torrey pines in other contexts. For example, the City allows removal of Torrey pines for lot development. Just down the street from us it recently allowed removal of six or seven mature Torrey pines for lot development. Two of these Torrey pines were in the public right of way. If the City does not “make every effort” to preserve Torrey pines during lot development, how can it do this in TSVS cases when the Ordinance says not to?
(Slide 11)
The TSVS Ordinance does not give tree owners more rights to their trees than it gives their neighbors to their primary scenic views. It does not speak to the relative value of trees and views in general. Instead, it evaluates specific factors that weigh the burdens and benefits of specific trees and specific views in determining whether there is unreasonable obstruction and, if so, the appropriate action to restore the view. Our specific view was a very high quality view. In addition to our interest in it, primarily its aesthetic and sentimental enjoyment, we believe the City should have an interest in retaining it as a high-quality view property for future generations. (Slides 12-13)
The Planning Commission subcommittee recommendation implied that in advocating for removal of a Torrey pine to restore our view and our neighbor’s views, we were putting our “own, narrow financial interests above the interests of the community as a whole.” Setting aside the impropriety of speculating about and judging our motivation, which is irrelevant to the Ordinance, the specific subject trees of our application, particularly trees #1 and #2, have little to no value to the community or neighborhood. They are not visible or are only minimally visible in the distance from community property. They obstruct the view from multiple properties on Torrey Pines Terrace. Ten of our neighbors on Torrey Pines Terrace wrote emails in support removing tree #1.
(Slide 14)
It is difficult to understand any benefit tree #1 provides to the Whites. It is located in the backyard of their house, with only its trunks and a few remaining large branches presumably visible from inside. The large falling branch highlights the danger of large trees close to houses.

We believe the Whites would benefit by having tree #1 removed with replacement trees planted farther away from their house where their greenery would be more visible from inside the house, where they would provide privacy to their backyard, and where they could be more properly maintained going forward.

Mr. Brinbaum and planning commissioners assert ordering tree removal to restore our view would set a bad precedent. We assert that our TSVS case should not be decided based on a precedent it might set. Rather, it should be decided based on application of the Ordinance to the 2 2 November 14, 2022 Item 11
facts of the case. Indeed, we think a “precedent” set would be that the City of Del Mar will protect the primary scenic views of its current and future property owners from unreasonable obstruction by their neighbor’s vegetation, which it promised to do when it enacted the TSVS Ordinance. Effective enforcement of the Ordinance will discourage others from unreasonably obstructing their neighbor’s primary scenic views, preventing conflicts like ours, and benefiting the community as a whole.
(Slide 15)
The plan initially developed by the Planning Commission subcommittee over a period of seven months was to remove 40% of tree #1 at once. We brought to their attention that this violated pruning standards. The Whites were then granted a last minute continuance to our hearing to give Mr. Birnbaum time to come on board and advocate for them. We are deeply concerned with Mr. Birnbaum's involvement in our case. He was the long-term Planning Manager for Del Mar whose tenure overlapped with some of the Planning Commissioners and some of you. He was extensively involved in the development of the White Residence. We are concerned he may unduly influence you.
(Side 16)
Mr. Birnbaum specifically instructed Mr. Wisneiwski to develop a plan that does not involve removal of tree #1, rather than instructing him to develop a plan that restores our view.

The goal was not to restore our pre-existing view, but instead to restore what Mr. Birnbaum claimed was a “reasonable view” or to “reasonably restore a view,” which is not what the Ordinance calls for. Mr. Wisniewski’s plan was to carve out a narrow six foot view corridor through the wide and dense canopy of tree #1, a small fraction of our prior view. The plan had us pay for repeated cycles of thinning and regrowth of the top five feet of the remainder of tree #1 and of trees #2 and #3, up to 20%, for two successive years (deceptively equated to restoration of 40% of our view), which would do nothing meaningful to contribute to restoration of our view.

Thinning cannot be used to restore a view through a wide, dense canopy. (Side 17)
The plan prioritized tree work to mitigate the fire hazards of the trees and benefit the Whites over tree work to restore our view. In addition, the paramount importance placed on preserving “the long term health of the trees” will allow the Whites to have their arborist say the pruning will compromise the health of the trees to not comply with the prescribed trimming work, as they said to us for years. They have already done just that, saying they will not do any trimming of tree #1 this year since the large branch fell, which they say compromised its health.

The plan was approved by the Planning Commission in a contentious and divided 3-1 vote one month after the last minute continence was granted. The dissenting voter (McGreal) agreed with us that this plan will not substantially restore our view. We decided then to appeal the final decision.
3 3 November 14, 2022 Item 11
(Slide 18)
Our skepticism that the plan would restore our view was substantiated when this large branch fell, reducing the tree by 40% and not substantially restoring our view. (Slide 19)
The Birnbaum/Wisniewski plan is a five year plan, which is not consistent with the enforcement provision of the Ordinance (DMMC 23.51.110), which requires view restoration work to be completed in 90 days (or the next pruning season). DMMC 23.51.070 B requires the restorative action plan be consistent with all provisions of the Ordinance, which includes the enforcement provision. It has still not been explained how a 5-year plan is consistent with DMMC 23.51.110 and DMMC 23.51.070 B.
(Side 20)
Mr. Birnbaum and the Planning Commission assert the Whites should not be required to remove any of their trees to restore our view since the trees were required to be preserved during development of their lot, and they spent money and effort doing that (“To the Whites, the biggest (value of the tree) is they spent a lot of time, money and effort…to try and preserve these trees”).

The effort made caring for trees is not a factor in the Ordinance. The requirement to preserve the trees during lot development did not preclude the Whites from maintaining them so they did not unreasonably obstruct our views. It did not take away our right to our primary scenic view and give the Whites the right to unreasonably obstruct it. It did not exempt the trees from the TSVS Ordinance or limit restorative actions under it.

Development of the White Residence, including its design between the subject trees, involved multiple exceptions made to zoning regulations and was a privilege granted to them, not a burden. It diminished a scenic canyon and adversely affected the trees within it, both of which were to be preserved. It now has a delayed downstream effect of taking away the views of neighbors.

The White’s architect, Mr. Dominy, was an author of the CVPP, a Specific Plan involving resubdivision and modification of zoning regulations in an area south of our house within the Bluffs, Slopes and Canyon Land Overlay Zone. While the Del Mar Community Plan limits houses to two stories (Goal 3, Objective and Policy 3A: Maintain a low density residential character and allow only one and two story low mass intensity development in residential areas), the CVPP apparently removed this restriction and allowed the Whites to build a three-story house (“the requirement of zoning that two stories be the maximum shall not apply”).

The building site was placed in the middle of a narrow, scenic canyon that was highly constrained, consisting almost entirely of steep slopes and a narrow canyon bottom. The canyon 4 4 November 14, 2022 Item 11
had five Torrey pines with canopies largely covering the canyon floor. Preservation of the trees and natural drainage patterns of the canyon was required by the CVPP. Presumably for this reason, grading was prohibited in the canyon. As initially proposed, the house was to be entirely elevated on poles or caissons and have a detached garage to help preserve the trees and natural drainage of the canyon. The largest of the five Torrey pines (30 inch diameter trunk) was subsequently cut down by an unknown party without a permit, which made room for a house with an attached garage.
(Slides 21-23)
An application to rezone the lot by amending the CVPP was subsequently filed by Mr.

Dominy for Michael Rosengarten, the property owner at the time. The rezone allowed grading and excavation into the steep east and west slopes of the canyon to “set” the house into the canyon on two concrete slabs, with the house to span slightly elevated between the slabs over the narrow canyon floor. This involved replacement of 4122 cubic feet of the canyon slopes by the building structure. It was asserted by Mr. Birnbaum that the grading would not disturb the natural drainage patterns of the canyon, which was a lot specific requirement of the CVPP, and would “not affect the goal of the Specific Plan as stated in the Community Plan… of preserving scenic canyons.”
The project arborist, Mr Wisniewski, said the grading in close proximity to the trees, together with the required removal of large branches, would severely compromise their health and life (“The accumulative impacts are severe/moderately severe and will jeopardize the health and life of the tree(s)”). Grading was also prohibited throughout the CVPP under the dripline of Torrey pines, which the arborist report said would occur (“The trees did not appear to be located or depicted on the plans as they actually occur on the site. Their canopies are much larger and overhang portions of the proposed excavations''). The rezone was approved by the Planning Commission by a divided 3-2 vote with the dissenters concerned about the effect of the grading on the Torrey pines and natural drainage of the canyon. After the house was constructed, one of the Torrey pines close to the front of the house fell down in a storm. Its roots were reportedly water logged. Harvey White attributed the tree failure to construction of the house (“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”).

The Trees Ordinance (the Ordinance that protects Torrey pines) had been amended one year prior to include a “12-foot rule” that exempted Torrey pines located less than 12 feet from a house from protected status. The building plans and arborist report indicated the proposed house was less than 12 feet from all four of the Torrey pines in the canyon. After development of the lot, the Whites or any future owner of the property were free to cut the trees down at their pleasure, contradicting the intent of the CVPP to “preserve the stands of Torrey pine trees located within the Specific Plan area.”
5 5 November 14, 2022 Item 11
The property was sold to Harvey White before completion of lot development and he made two subsequent modifications to the DRB that were not opposed. Landscaping plans required for approval by the Coastal Commission indicated no planting was to occur in the dripline of Torrey pines. An irrigation system was added and there is currently lush landscaping under the Torrey pines.
(Slide 24)
We believe the grading and “setting in” of the house into the canyon did indeed alter the normal drainage patterns of the canyon, which was prohibited by the CVPP. Drainage is now partially trapped behind the house and directed to the shaded area near the entrance to the drainage easement under the house where the base of tree #1 is. Artificial irrigation to water the landscaping in the backyard that is under the dripline of the Torrey pines has been added and the backyard is lush green. Torrey pines are naturally adapted to the semi-arid climate of the coast, naturally watered by winter rains and fog drip from the needles. Additional water alters their growth, causing them to grow larger and denser than in their native state. The large Torrey pines that dominate some areas in Del Mar are heavily influenced by artificial irrigation. (Slide 25)
Development of the White Residence, including its design between the subject trees, involved multiple exceptions made to zoning regulations and was a privilege granted to them, not a burden. Perhaps they can give something back to the neighborhood and restore our views. (Slide 26)
From a practical perspective, one can compare two possible outcomes to our case. One is that the City Council decides to approve the plan proposed by Mr. Birnbaum and Mr.

Wisniewski. The other is that the City Council implements Mr. Walton’s plan with removal of subject tree #1 and a requirement for on-site replacement plantings of Torrey pines.

In the first scenario, the White’s trees continue to extensively obstruct the view from our property and the Michaels property, taking away our enjoyment of our properties, markedly lowering our property values, and lowering the property values of other properties on Torrey Pines Terrace. In exchange, there is little to no (or even negative) tangible value maintained by the tree for the White Residence. They will continue to grow larger, increasing the burden they impose.

In the second scenario, the aesthetic enjoyment and financial value of our property and the Michaels property is substantially restored, the views of other properties on Torrey Pines Terrace are restored and/or protected, and the Whites can still enjoy having Torrey pines on their property. These replacement Torrey pines could be more appropriately situated on their property 6 6 November 14, 2022 Item 11
where their greenery could be seen from inside the house and they would provide privacy to their backyard. They would not be aesthetically compromised by prior improper maintenance and uneven canopies due to large falling branches. They would be free of the burdens of large trees close to houses. Their irrigation could be appropriately limited. This second scenario would also fulfill the intent of the CVPP to maintain Torrey pines in the canyon. Indeed, these replacement trees could be protected by the Trees Ordinance, better fulfilling this intent than the current unprotected trees. With proper maintenance, the replacement trees could grow to more closely approximate Torrey pines in their natural state. This plan would benefit the entire neighborhood of Torrey Pines Terrace, even the Whites.

Michael and Angela Deftos
7 7 November 14, 2022 Item 11
TVS21-002
Michael and Angela Deftos
225 Torrey Pines Terrace 1
8 November 14, 2022 Item 11
Walton View Restoration Plan
Remove Tree #1
Crown Reduce
Tree 2 and 3
2 9 November 14, 2022 Item 11
8/1/2021
3 10 November 14, 2022 Item 11
Volume reduction vs view restoration: not a 1:1 linear relationship 25%
reduction
4 11 November 14, 2022 Item 11
Branch
that fell
5 12 November 14, 2022 Item 11
6 13 November 14, 2022 Item 11
Deftos Michaels
Whites
Deftos Michaels
Whites
3 2
Crown reduction
Replacement
plantings
Current Walton Plan with
replacement plantings
Tree Removal with Replacement Plantings
7 14 November 14, 2022 Item 11
“Make every effort” to preserve the trees because they are Torrey pines Two responsibilities in adjudicating TSVS cases (or just one?):

1. Interpret and implement the TSVS Ordinance (yes)

2. “Make every effort” to preserve the subject trees because they are Torrey pines (no) Planning Commission:
8 15 November 14, 2022 Item 11
TSVS Ordinance: 11 unweighted factors for determining appropriate restorative action
The following unweighted factors shall be considered in determining appropriate Restorative Action (DMMC 23.51.060):
9 16 November 14, 2022 Item 11
Removal of 6-7 Torrey pines for property development
10 17 November 14, 2022 Item 11
Torrey pines and scenic views in General Specific trees and specific views 11 18 November 14, 2022 Item 11
Seeking restoration our view, not our “own, narrow financial interests” “we also have a responsibility, in my view….given the skyrocketing property values in Del Mar… there are people…who might say wow this is my chance of a lifetime… I’m going to cash out…and they might, some of them…might all too easily try to use this Ordinance to affect that end...we have to think about the precedent we set.” “I foresee a slippery slope of people using this Ordinance to enhance their view for whatever purpose”
1974, 48 years in Del Mar
12 19 November 14, 2022 Item 11
Neighborhood support for tree removal
Support Walton Plan (tree removal)
Support view restoration, including
tree removal
13 20 November 14, 2022 Item 11
14 21 November 14, 2022 Item 11
Commissioner Farrell 8/12/22: “We have learned that our proposal of 40% reduction…we’ve been informed..that there is a limitation of a maximum of 25% reduction at any one time. So I would suggest that the subcommittee recommendation be taken off the table tonight.” Commissioner Bakker 8/12/22: “The 40% I knew would be difficult…I did not find out about that it was recommended to stay at 25%”.

Subcommittee Recommendation Tree #1
Not workable:
15 22 November 14, 2022 Item 11
Birnbaum/Wisniewski Plan
6 foot view
corridor
Before Limb Fell
Thin top 5 feet <20% over 2 seasons 8/1/2021
then maintenance
5 feet
16 23 November 14, 2022 Item 11

1. Clean (maintenance)

2. 10-foot separation from tree 2
3a. 5-foot wide center corridor
3b. 5-foot west canopy reduction
3c. Thin canopy/remove tallest
branches +/- 5 feet
Tree #1 (Year 1)
leftovers
leftovers
leftovers
leftovers
Tree #1 (Year 2)

1. Clean (maintenance)

2. 10-foot clearance from chimney/flue pipe
3a. 6-foot wide center window
3b. Thin canopy/remove tallest branches +/- 5 feet
leftovers
leftovers
leftovers
20% tree reduction max
20% tree reduction max
Prioritizing tree trimming to benefit the Whites
17 24 November 14, 2022 Item 11
Before After
Limb failure tree #1: 40% tree reduction with no significan view restoration 18 25 November 14, 2022 Item 11
DMMC 23.51.110 (Enforcement): 90 days or next pruning season

23.51.070 B. View and/or Sunlight Restorative Actions must be consistent with all other provisions of this Chapter 19 26 November 14, 2022 Item 11
Carmel Valley Precise Plan: Lot 4
Removed
without permit 20
27 November 14, 2022 Item 11
CVPP Rezone (R98-02)
21 28 November 14, 2022 Item 11
16ft
10ft
3114 cubic feet 1008 cubic feet
Courtesy of City of Del Mar
Tree removed
without permit
Tree fell
down
22 29 November 14, 2022 Item 11
23 30 November 14, 2022 Item 11
Altered Drainage in Canyon
24 31 November 14, 2022 Item 11
Not a burden
3-story house in Del Mar
House in a scenic canyon full of Torrey pines
One tree removed without permit, made room for larger house CVPP amended to allow grading into steep slopes of canyon Altered natural drainage of canyon
Allowed to grade under drip line of Torrey pines
Allowed to grade into substantial steep slopes
Allowed to build house so close to 4 Torrey pines that they lost their protected status One Torrey pine died, probably secondary to construction of house Added landscaping and irrigation in dripline of Torrey pines, lush and green backyard 25 32 November 14, 2022 Item 11
Deftos Michaels
Whites
Deftos Michaels
Whites
Deftos Michaels
Whites
3 2
Crown reduction
Replacement
plantings
Current Birnbaum Plan Walton Plan
Possibilities
26 33 November 14, 2022 Item 11
End
27 34 November 14, 2022 Item 11
Del Mar Mayor and City Councilors,
Please find below emails from our neighbors documenting support for removal of tree #1.

These emails are part of record of our case but are somewhat difficult to find in the staff reports from our December 7, 2021 and July 12, 2022 Planning Commission meetings. This is the basis for slide 13 of our first red dot submission and the statement that “Ten of our neighbors on Torrey Pines Terrace wrote emails in support removing tree #1”.

Thanks,
Michael and Angela Deftos
Carly and Hal Micahels
237 Torrey Pines Terrace
John/Peggy Overland
351 Ocean View Ave
1 November 14, 2022 Item 11
Pauline Chu/Donald Resnick
251 Torrey Pines Terrace
Rita/Alex Klibanov
209 Torrey Pines Terrace
2 November 14, 2022 Item 11
Edna Chow/Daniel Maneval
238 Torrey Pines Terrace
Susan/Dennis Swift
290 Torrey Pines Terrace
Ole Snyder
280 Torrey Pines Terrace
3 November 14, 2022 Item 11
Anne Daigle/Rich Heyman
264 Torrey Pines Terrace
4 November 14, 2022 Item 11
Linda and Eric Daniels
279 Torrey Pines Terrace
Note:

View Restoration Plan 1: A trimming plan involving trees #1, #2 and #3.

View Restoration Plan 2: Removal of tree #1 and trimming of trees #2 and #3.

View Restoration Plan 3: Removal of trees #1, #2 and #3.

Vern and Patricia Yates
285 Torrey Pines Terrace
Note:

View Restoration Plan 1: A trimming plan involving trees #1, #2 and #3.

View Restoration Plan 2: Removal of tree #1 and trimming of trees #2 and #3.

View Restoration Plan 3: Removal of trees #1, #2 and #3. 5 November 14, 2022 Item 11
1 Melinda Gould
From: Dolores Davies <[email protected]>
Sent: Sunday, November 13, 2022 6:14 PM
To: City Clerk Mail Box
Cc: Dwight Worden-Private; Tracy Martinez; David Druker; Dan Quirk; Terry Gaasterland Subject: Nov. 14 Agenda, #11–Red Dot
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.

November 13, 2022
Del Mar City Council
Nov. 14 Council Agenda, Item 11 (Red Dot)
Dear Mayor Worden and Councilmembers:

Regarding Item 11, a De Novo Hearing of an Appeal of the Planning Commission’s Decision on Trees, Scenic Views, and Sunlight Application TVS21-002, we urge you to accept the Planning Commission Subcommittee’s decision and the view restoration plan espoused by arborist Mark Wisniewski.

The Torrey Pine is not only a protected tree and the emblem for our city, but this rare, “narrow endemic” tree is also classified as an endangered (rank 1B.2) plant by the California Native Plant Society. Goal 3.B.3 of the Community Development section of the Del Mar Community Plan encourages “judicious” pruning of mature trees to restore view corridors. A Torrey Pine—especially one that was previously conditioned for preservation by the Design Review Board—should not be removed to enhance a property owner’s view, especially in a highly sensitive planning area like the Carmel Valley Precise Plan.

While we realize that some members of the Council have discussed their desire to find a more effective way to restore ocean views for Del Mar residents who can demonstrate that significant view blockage has occurred, any new and equitable approach must be sensitive to the need to preserve our urban forest—especially our Torrey Pines. At a time when we are facing a severe climate crisis and Del Mar’s Climate Action Plan calls for the planting of dozens of new trees, now is not the time to remove the large, mature Torrey Pines that are helping us to sequester greenhouse gases.

Thank you for taking these important factors into account.

Sincerely,
Richard Jamison & Dolores Davies Jamison
Crest Road
Del Mar
1 November 14, 2022 Item 11
1 Melinda Gould
From: City Clerk Mail Box
Subject: FW: Public Comment for Today's City Council Meeting - Item 13 - In-Person Meetings Transition Plan (Typo Correction)
From: Mary Davis <[email protected]>
Sent: Monday, November 14, 2022 9:04 AM
To: City Clerk Mail Box <[email protected]>
Subject: Public Comment for Today's City Council Meeting - Item 13 - In-Person Meetings Transition Plan (Typo Correction)
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.

City Council & Clerk:

Will keep this short and sweet. I see you're inching towards re-opening, so thank you for that.

Urging you to do it soon, and not come in last.

Safe on the campaign trail and public events, safe at City Council meetings! Kind Regards,
1 November 14, 2022 Item 13
2 Mary D.
2 November 14, 2022 Item 13

CITY COUNCIL AGENDA QUESTIONS
November 14, 2022
Item 5 – Ratification of List of Demands

1. Why are there two large payments to the City Attorney for September - $23,216 and $22,989.60 (in addition to smaller checks totaling another $22,239.50)?
Staff Response: City attorney invoices are separated by type of service, project or claim/litigation. The $22,989.60 check is for the monthly legal retainer for general citywide legal services. The $23,216, as well as the remaining invoices are related to liability claims/litigation, or specific legal issue/project (i.e. STB/NCTD matter; Citywide Undergrounding project).

Item 12 – Adoption of Resolution Establishing Fees for Use of Credit Cards, Debit Cards, and Electronic Funds Transfer to Pay for Fees, Services and Other Debts Owed to the City of Del Mar

1. Is the fee for a debit card payment the same as a credit card payment? Staff Response: Yes, the same fee would apply to both debit and credit cards.

2. What is the fee for an eCheck?
Staff Response: The eCheck fee varies based on the system. Business license (HdL) online portal will charge $1.25 per eCheck transaction and the Planning & building permit (TraKit) online portal will charge a $2.95 per eCheck transaction. 1 November 14, 2022 Items 5 & 12