Agenda, first session — Del Mar City Council, May 15, 2023

Del Mar City Council Meeting Agenda
Del Mar Town Hall
1050 Camino del Mar, Del Mar, California
May 15, 2023 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: Karen Brindley, Planning and Community Development Director DATE: May 15, 2023
SUBJECT: Red Dot Item 11: Adoption of an Amended Restorative Action Plan for 404 Torrey Point Road
Item 11 on the City Council’s May 15, 2023, agenda includes the adoption of an Amended Restorative Action Plan for 404 Torrey Point Road. At the time of the publication of the agenda packet, Exhibit B had an attachment that included a tree inventory that identified trees located in the Landscape Area and the Open Space Area. As the Amended Restorative Action Plan implements the Court Order with respect to the vegetation only in the Open Space Area of the property, removing the attachment will eliminate any reference to trees in the Landscape Area to avoid potential confusion. Staff is submitting this red dot communication with a revised Exhibit B that removes the tree inventory attachment.

Exhibit B – Amended Restorative Action Plan For 404 Torrey Point Road (Olson Property)
1 May 15, 2023 Item 11

AMENDED RESTORATIVE ACTION PLAN FOR
404 TORREY POINT ROAD (OLSON PROPERTY)
Dated as of May 15, 2023
The following Amended Restorative Action Plan requires the Property Owners of 404 Torrey Point Road in Del Mar (“Property”) to take the following actions to bring and maintain the Property in compliance with the City of Del Mar Carmel Valley Precise Plan:

1. Remove all trees that are non-native species in the Open Space Zone of the Property pursuant to the September 12, 2022 Court Order issued by the Honorable Judge Gregory W. Pollack – Tree Tag number 25 (a canary island date palm) and numbers 28, 31, 32 and 33 (red gum eucalyptus trees) that the Court found both non-native and non-DRB-approved.

2. The Property Owners must cover the cost of all work and otherwise comply with the terms and conditions of this Amended Restorative Action Plan, as well as all applicable rules and regulations of the City of Del Mar.

3. This Amended Restorative Action Plan shall be implemented and completed within six (6) months of City Council action and approval, or no later than November 15, 2023. The Property Owners may request a single extension of time by submitting a written request to the City Manager setting forth the reason that substantial work on the Amended Restorative Action Plan cannot be commenced by the required performance date. The City Manager may exercise discretion on whether to grant the extension if there has been a change in circumstances to warrant an extension.

No extension shall be granted for a period greater than one (1) year from the time of the City Council action and approval of the Amended Restorative Action Plan.

4. The Property shall otherwise continue to be subject to and maintained in accordance with the CVPP.

End of Conditions for Amended Restorative Action Plan
2 May 15, 2023 Item 11
1 Denise Galvan
From: Dolores Jamison <[email protected]>
Sent: Sunday, May 14, 2023 8:09 PM
To: Tracy Martinez; David Druker; Terry Gaasterland; Dwight Worden; Dan Quirk; City Clerk Mail Box
Subject: May 15, 2023 Council Agenda, Item 13–RED DOT
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.

May 14, 2023
To: Del Mar City Council
Subject: May 15, 2023 Council Agenda, Item 13—Undergrounding Update—RED DOT Dear Mayor Martinez and Council Members:

At the April 27, 2023 meeting of the Undergrounding Project Advisory Committee, a number of residents from the X1A Crest Road/Crest Canyon UUD (Utilities Undergrounding District) were in attendance, seeking answers about the status of the project.

Unfortunately, very little clarity was provided by City staff or the committee.

At the April meeting, City staff stated that a biologist had not yet been retained to review the impacted habitat in UUD X1A. This has not happened in spite of the fact that in September 2022, staff reported to the Council that while the 1A Stratford Court South UUD would qualify for a categorical exemption to CEQA, the X1A Crest Canyon UUD was not likely to qualify because some of the pole removal activities for the project will occur in sensitive habitats. Staff also reported that it was working with SDG&E and AT&T to understand the pole removal methodology and the likely impact on environmentally sensitive areas, which was under review by the project's environmental consultant. At that time, City staff concluded that the Stratford Court South UUD was anticipated to begin construction in the fall of 2023, while the anticipated construction start date of X1A-Crest Canyon UUD was yet to be determined, pending the completion of the environmental review work.

In May 2023–some eight months later—no timeline has been given to residents for when construction will begin on the X1A-Crest Road/Crest Canyon UUD and no update on the status of the environmental review has been provided. Given that this UUD was deemed a priority by the Council due to wildfire-related public safety issues, it is distressing that the City has not been more proactive and transparent in advancing this project. We believe the City should be devoting sufficient resources to expediting the environmental review process so that construction can begin on the X1A-Crest Road/Crest Canyon UUD, concurrently with 1A-Stratford Court South, or as soon as possible.

Given the lack of clarity concerning the environmental review for UUD X1A, we would appreciate it if City staff could respond to the following questions:

1. Is there an update on the environmental review for UUD X1A or will we need to wait for the environmental determination expected in August?

2. If there is an environmental permitting process for UUD X1A that ends up taking longer than currently expected due to an issue in one of the three project areas, can the phasing order of the three project areas be rearranged?

3. Is there a scenario where UUD 1B can leapfrog UUD X1A? We appreciate your efforts to help residents better understand the environmental review process relative to UUD X1A and how that process is likely to impact construction and completion dates. Thank you again for prioritizing fire safety and encouraging staff to utilize the resources it needs to expedite this UUD project.

Sincerely,
Dolores Davies Jamison and Richard Jamison
Crest Road
Anne and John Farrell
Via Alta
Rosanne Holiday
Crest Road
Barbara and Joe Harper
Crest Road
1 May 15, 2023 ITEM 13
2 Beth Levine and Henry Abarbanel
Crest Road
Linda and Frank Chisari
Crest Road
Sue and Judd Halenza
15th Street
Joan and Craig Brown
Crest Road
Judy and Marc Schuckit
Kalamath
Gloria Sandvik
Crest Road
Rose Ann and Ira Sharp
Crest Road
Sue and Don Instone
Crest Road
Sally and Ron Taylor
Crest Road
Nick and Fran Frost
Crest Road
Suzi Resnik and Stan Marks
Crest Road
2 May 15, 2023 ITEM 13
1 Denise Galvan
From: Dolores Davies <[email protected]>
Sent: Monday, May 15, 2023 9:49 AM
To: City Clerk Mail Box
Subject: Fwd: May 15, 2023 Council Agenda, Item 13–RED DOT Follow Up Flag: Follow up
Flag Status: Completed
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Greetings.

Is it possible to add the following names to our red dot letter? Marnie Mahoney
Crest Road
Jason Dempsey
Crest Road
Shirley King and Art Olson
Avenida Primavera
Thanks so much.

Dolores
Begin forwarded message:

From: Dolores Jamison <[email protected]>
Date: May 14, 2023 at 8:09:12 PM PDT
To: [email protected], David Druker <[email protected]>, [email protected], Dwight Worden <[email protected]>, [email protected], [email protected]
Subject: May 15, 2023 Council Agenda, Item 13–RED DOT
May 14, 2023
To: Del Mar City Council
Subject: May 15, 2023 Council Agenda, Item 13—Undergrounding Update—RED DOT Dear Mayor Martinez and Council Members:

At the April meeting, City staff stated that a biologist had not yet been retained to review the impacted habitat in UUD X1A. This has not happened in spite of the fact that in September 2022, staff reported to the Council that while the 1A 1 May 15, 2023 ITEM 13
2 Stratford Court South UUD would qualify for a categorical exemption to CEQA, the X1A Crest Canyon UUD was not likely to qualify because some of the pole removal activities for the project will occur in sensitive habitats. Staff also reported that it was working with SDG&E and AT&T to understand the pole removal methodology and the likely impact on environmentally sensitive areas, which was under review by the project's environmental consultant. At that time, City staff concluded that the Stratford Court South UUD was anticipated to begin construction in the fall of 2023, while the anticipated construction start date of X1A-Crest Canyon UUD was yet to be determined, pending the completion of the environmental review work.

Given the lack of clarity concerning the environmental review for UUD X1A, we would appreciate it if City staff could respond to the following questions:

1. Is there an update on the environmental review for UUD X1A or will we need to wait for the environmental determination expected in August?

Sincerely,
Dolores Davies Jamison and Richard Jamison
Crest Road
Anne and John Farrell
Via Alta
Rosanne Holiday
Crest Road
Barbara and Joe Harper
Crest Road
Beth Levine and Henry Abarbanel
Crest Road
Linda and Frank Chisari
Crest Road
Sue and Judd Halenza
15th Street
Joan and Craig Brown
Crest Road
Judy and Marc Schuckit
Kalamath
Gloria Sandvik
Crest Road
Rose Ann and Ira Sharp
Crest Road
Sue and Don Instone
Crest Road
Sally and Ron Taylor
Crest Road
2 May 15, 2023 ITEM 13
3 Nick and Fran Frost
Crest Road
Suzi Resnik and Stan Marks
Crest Road
3 May 15, 2023 ITEM 13

TELEPHONE
760.943.0100

FACSIMILE
760.943.0942

THE LAW OFFICE OF
RICHARD R. RICE

ATTORNEY AT LAW
1084 NORTH EL CAMINO REAL, SUITE B121
ENCINITAS, CALIFORNIA 92024-1334
EMAIL
[email protected]

WEBSITE
www.rrrlaw.net
Olson v. City of Del Mar
SDSC Case No. 37-2019-00069156-CU-MC-CTL
City Council Meeting
2023 05 15
Agenda Item No. 11 – Adoption of Amended Restorative Action Plan Mayor and Council Members:

My name is Richard Rice. I am an attorney and represent Ken and Linda Olson, the owners of 404 Torrey Point Road.

I represented the Olsons in the Superior Court case which resulted in the judgment referred to in the staff’s report. The resolution purports to be based upon that judgment. However, it fails to comply with the judgment. It also contains errors unrelated to the judgment which must be corrected before the council could properly adopt it if it adopts it at all. The adoption of the resolution and amended RAP in their present form would only result in further court proceedings and compound the costs to both parties.

It is important to note in the first instance that the judgment does not require the City to adopt the amended RAP at all. The judgment merely restricts what terms may be included in the amended RAP if the Council is inclined to adopt it. Mr. Olson will explain in his remarks why the Council should abandon any continued enforcement of CE19-040 and should seek other means of resolution that would be to the mutual benefit of all members of the community.

The resolution cannot be adopted in its current form because it does not comply with the Court’s judgment and contains other errors and ambiguities. As a technical correction, the Petition was filed on December 31, 2019, not January 2, 2020. Those areas in which the amended RAP fails to comply with the Court’s judgment include the following:

1. Paragraph 1 provides that the Olsons are to, “Remove all trees that are non-native species in the Open Space Zone of the Property pursuant to the September 12, 2022, Court Order . . .” That is not what the Court’s order says. It says that the City may only require the removal of Tree Nos. 25, 28, 31, 32, and 33. I emphasize the work “may”. The City is not required to do this. But, if the City does do it, the amended RAP may do nothing more than require the removal of those five specified trees. The language requiring the Olsons to “remove all trees that are non-native species in the Open Space Zone of the Property” must be stricken. In the same vein, while the Court order said that the City could require the removal of Tree Nos. 25, 28, 31, 32, and 33, it also said that Tree Nos. 24, 26, 27, 29, and 30 which were approved by the DRB in 1982 could remain. The amended RAP should so provide.

2. Paragraph 2 provides that the Olsons “must cover the cost of all work and otherwise comply with the terms and conditions of this Amended Restorative Action Plan, as well as all applicable rules and regulations of the City of Del Mar.” The Court’s Order actually says nothing about who shall pay the costs of the removal of the trees. This paragraph must be stricken. 1 May 15, 2023 ITEM 11
City Council Meeting
2023 05 15
Agenda Item #11 – Adoption of Amended Restorative Action Plan

Page 2 of 2 ends

3. Neither the Court’s order nor the resulting judgment say anything about “otherwise complying with the terms and conditions of the Amended Restorative Action Plan, nor anything about complying with “all applicable rules and regulations of the City of Del Mar.” It is self-evident that any citizen is required to comply with the City’s ordinances. The inclusion of this term in the amended RAP would be, in Judge Pollack’s words, paternalistic and improper.

4. Paragraph 4 provides that, “The Property shall otherwise continue to be subject to and maintained in accordance with the CVPP.” Again, the Court’s order allows for no such language. Again, it is self-evident that any citizen is required to comply with the City’s ordinances. Again, the inclusion of this term in the amended RAP would be, in Judge Pollack’s words, paternalistic and improper. Paragraph 4 should be stricken in its entirety.

5. Finally, the amended RAP does not refer to the previous RAP and is therefore vague and ambiguous. Does the original RAP remain in effect, or is it superseded by the amended RAP? This isn’t clear. The resolution adopting the amended RAP must specifically provide that it supersedes the original RAP, and that the resolution adopting the original RAP is vacated and withdrawn. All recitals of the resolution adopting the amended RAP other than those referring to the lawsuit and the resulting judgment must be stricken. Such recitals are irrelevant and serve no purpose other than to besmirch Olson’s reputation.

Mr. Olson’s request is that the Council reject the proposed resolution and amended RAP, and instead engage in a dialogue with him that would once and for all end any further disputes between the parties.
2 May 15, 2023 ITEM 11
5/15/23
To: Tracy Martinez; David Druker; Terry Gaasterland; Dwight Worden; Dan Quirk; City Clerk Mail Box Re: Red Dot – Council Meeting 5/15/23 Item 11: Amended RAP for 404 Torrey Point Road Please do not sweep this item under the consent calendar. Although staff claims “no fiscal impact” from adoption of this amended RAP, given the past and potentially future litigation expense it could incur unless corrected, that seems unlikely. Please ask yourselves - how much has the City has already spent in legal fees - and why?
The idea that a City Council tried to go back and change a past DRB ruling is frightening and would have set a dangerous precedent that affects all Del Mar residents. My thanks to the Olsons for paying for a lawsuit that reminded the City you can’t do that – which benefits us all.

To avoid wasting additional City money on legal fees I suggest the amended RAP be sent back to staff to be modified with the following conditions:
 For clarity, confirm this ‘amended” RAP replaces all previous RAP’s and vacates Council’s previous Resolutions on this subject.
 Revise Item 2 to carefully use the exact the wording of the Court’s judgment:
 Remove Item 4 from the RAP as it is not needed and is inconsistent with the Court judgment:

Reasoning:
 Item 2: the RAP omits the important word in the Court’s order, “namely” leaving the dangerous word “all trees” which could open up future complaints and cost to the City.  Item 4: includes the responsibility to “maintain” in accordance with the CVPP and is inconsistent with the Court’s order to “strike all requirements” other than removal of the 5 trees. The CVPP 8.D says
It’s not right to require any Del Mar owners of open space to maintain by removing trees planted by nature.

Thanks,
Bill Carpenter
1 May 15, 2023 ITEM 11
Quotes from Residents’ Red Dots for the 10/21/19 de novo Hearing By Ken Olson 5/15/23
The Council received many red dot letters presumably related to the 10/21/19 de novo Hearing. They were delivered to the Council as being about the RAP under discussion, when in fact many were about an important but unrelated subject, the review of the CVPP. My purpose here is to un-conflate the two topics into (A) those related to the agenda topic (the RAP) and (B) those related to the CVPP.

A. Excerpts from Red Dot letters about the trees and the orders to remove them  We oppose the staff’s order that the Olson family at 404 Torrey Point Road must remove perfectly good trees…
 Requiring struct compliance with a 1980 oddly stated rule rather than thinking big picture is wrong in the case of decades old trees…
 I do not understand why the City would require the removal of plantings that were originally approved by the DRB, particularly with our community’s traditional support of a green environment.
 I understand that the staff has ordered the Olson family to remove many healthy trees that were planted 37 years agas approved by the DRB on steep slopes in the designated open space. I oppose such an order for many reasons…
 We would like to support the Olsons in their request to moderate the removal of certain trees…The issue boils down to the strictest possible application of selected City ordinances and DRB decisions …versus an alternate ordering of priorities and the application of common sense… Removal oof the plantings will decrease the stability of portions of the hillside overlooking Carmel Valley Road, decreases the pleasantness of view for some neighbors, trading the sight of green growing trees and shrubs foe a direct view of the Olson house, decrease the softening of the view from Highway 101 as called for by the Coastal Commission. Kindly consider this an opportunity to inject common sense into the landscape management process – and maybe even open an opportunity to update and improve the Carmel Valley Precise Plan.  It is very sad that neighbors cannot get along. It is also sad that somebody who has lived here for years is suddenly asked to meet demand of people who newly build or purchase a house. The new people know the situation when they purchase or build. In the case of Mr. Olson I know that he has already removed trees that offended new neighbors. He should not be required to trim or remove trees that do not block views or are in designated “open space”.  … I strongly oppose this order by the City of Del Mar for the following reasons: Keep Del Mar beautiful. Destruction of habitat. Stability of bluffs. Fighting climate change. Property rights: this step, if enforced, would be egregious overreach by the city into private property rights. Everyone who commutes home to Del Mar from the south sees these trees every day. They contribute to Del Mar’s beauty, wildlife habitat bluff stability, and to the urban tree canopy.  I am against the removal of trees on the Olson property. The last time they were forced to remove vegetation we looked at barren wasteland for months. Shouldn’t others’ views be considered in addition to those that are complaining. It is my understanding that the trees were planted with authorization from Del Mar Personnel/committees. Why is it suddenly being rescinded? There must be some compromise like thinning the vegetation to open up views vs removing everything. Please reconsider!
1 May 15, 2023 ITEM 11
B. Excerpts from Red Dot Letters not about the agenda item – instead about the CVPP These letters are about potential loss of rights and protections – expressing concerns about the rumor that the sky was falling, and their rights were going to be taken away by the Council if they don’t speak up. Note that these residents are not talking about the RAP requesting that trees be removed, which was the agenda item topic; they are talking instead about the CVPP.
 I understand that you are considering waiving or eliminating our open space requirements, tree height restrictions, and/or view protections simply because the Olsons were found in violation of the rules…, I would hope that the current City Council will see through this land grab and protect the rights of all the residents of our area, not just those with wealth and connections. Changing the law to suit one person’s desires is not in the cooperative spirit that prevailed when the CVPP was created by our band of neighbors and passed by the City Council…PRESERVE AND ENFORCE THE Carmel Valley Precise Plan.  The Torrey Point Estates Home Owner Association advocates retention of the Carmel Valley Precise Plan. If the city would like to modify the Carmel Valley Precise Plan, we would appreciate working with the city or at least having the language modifications several weeks in advance to allow discussion and input from our members…
 I support the protections provided by the Carmel Valley Precise Plan, which preserves our views and open space.
 We strongly object to any changes in the CVPP that could further erode our shrinking views.  It has come to our attention that the Design Review Board is considering making changes to the CVPP and could waive or eliminate open space requirements and view protections afforded by the CVPP. I would like to state that I do not believe that this change to the CVPP is desired by our neighborhood or of any benefit to the City. The CVPP was designed by the homeowners and has served this neighborhood and the City well for nearly 40 years…One homeowner should not have the ability to change the wording or intention of a Specific Plan, without the consent of all participating homeowners… We urge you to upfold the CVPP to protect the natural environment and protect views and property values.

Comments: Note the recurring themes as suggested during house-to-house visits and calls to neighbors by the author of “the sky is falling” scenario. That was the resident who was seeking even more view improvement than I had already given to him. The collection of excerpts shows how excited the two flattered widows became as they invented novel recollections. None of these letter writers knew about the RAP under discussion, Their topic was not the RAP, it was the CVPP. Yet the City clerk bundled them in with the letters about the RAP, diluting the importance and message of the letters about the agenda item.
2 May 15, 2023 ITEM 11
The Carmel Valley Precise Plan and Due Process
By Ken Olson 5/15/23
History of the CVPP
The CVPP was written in the late 70’s by non-experts for the development phase and was never intended to be a permanent zoning ordinance. The 1980 City Council knew this and inserted explanatory text:
“The plan will need to be modified as conditions alter over time and thorough reviews should be undertaken every three years to test the validity of its contents.”
The City has stated several times recently that this CVPP was adopted in 1980 “to guide development and preserve the ecological sensitivity of the CVPP’s native open space.” This indicates that it was not adopted as a normal zoning ordinance. it’s about zoning exceptions for an established community where a small number of rules could supplement the citywide zoning codes.

Working documents leading up to that CVPP’s adoption in 1980 were clear in stating that when collateral damage to the Open Space occurs during construction, repairs and restoration must be made with native plants. This was a sensible exception to the universal rule that deliberate planting is not allowed in an Open Space. Without this rule, restoration would have been forbidden.

No careful reading of paragraph 8.D. will find that it outlaws the existence of any and all nonnative vegetation in the Open Space or that the presence of any such vegetation constitutes a code violation.

The surrounding area contains hundreds of trees of dozens of species, all trying to get their genes into the next generation with no recognition of lot lines or municipal codes. Stewards/owners of each open space cannot reasonably be expected to continuously perform search and destroy missions to prevent the existence of any nonnative vegetation.

CODE SECTION 8D

8.D. Open Space Area. All private land outside the building and landscape limits (shown on the precise architectural plan) shall remain undeveloped for all time as an open space overlay district. Said district shall be composed of the property owners within the Carmel Valley Precise Plan district. Said owners will be responsible to preserve and protect said lands from fire and excessive erosion and vandalism as required. Access to said lands shall be limited to the drainage and street easements shown on the Precise Plan. Landscaping shall be limited to an informal planting of native plants normally found in the coastal scrub zone. Irrigation shall be limited to drip irrigation. No signs, fences or other structures shall be allowed, except as may be required for 1 May 15, 2023 ITEM 11
drainage and erosion control. Trails shall be limited to the maintenance access areas as shown on the Precise Plan.

Working documents in the months preceding the CVPP’s adoption in 1980 were clear in stating that when collateral damage to the Open Space occurs during construction, repairs and restoration must be made with native plants. This was a sensible exception to the universal rule that deliberate planting is not allowed in an Open Space. Without this rule, restoration would have been forbidden. 8D does not outlaw the existence of nonnative vegetation in the Open Space and therefore the presence of any such vegetation does not constitute a code violation.

The surrounding area contains many trees of many species, all trying to get their genes into the next generation with no recognition of lot lines or municipal codes.

Stewards/owners of each open space cannot reasonably be ordered to continuously perform search and destroy missions to prevent the very existence of any piece.

What’s the responsibility of the HOA that’s required to maintain the open space? Does the City’s interpretation on 8.D. apply to all the people with responsibility for maintaining the open space?
Other open spaces in the city have no such restrictions; several of them contain specifically protected Eucalyptus trees. The Dept of the Interior’s Model Ordinance for Open Spaces has no such restriction. Does any open space anywhere outlaw natural plant reproduction?
It is unreasonable for the landowners or members of a never-created “open space overlay district” to be required to keep 5+ steep hillside acres perpetually free of all nonnative trees in a neighborhood full of nonnative trees. The residents can’t live with that, and the City should not have the burden of enforcing it.

THE 10/21/19 DE NOVO HEARING
In 2019 we went through the awkward process of elected officials creating a restorative action plan for a property that had been cited for too-tall and non-native trees. This process took place in a de novo hearing with rules suited for a simple black/white dispute, but totally unsuited for complex legal questions. The Council received several opinions from the City Attorney at that session. One opinion was that the CVPP overrides the general zoning laws. Probably the right answer was that in cases of direct conflict, the CVPP applies.? In another opinion, the C.A. offered a suggestion to make the whole problem go away. The Council not only failed to understand that; one council member later stated for the record that the City Attorney had told them they must take a certain action that directly contradicted what the City Attorney had actually said. Nobody spoke up to correct that contradiction. The Council’s following decisions led to a lawsuit.

One element that bothers me is that, in its record keeping role, the staff took license with the Council’s actual decision and toughened it up. Then they sent the 2 May 15, 2023 ITEM 11
new version out as being reflective of the Council’s decisions. The new version was routinely and formally approved.

DUE PROCESS
Good due process is not afforded to residents who believe the City misunderstands its own ordinances.

I strongly object to the rubber stamping of flawed staff reports. This is a shortcut that prevents good due process. Some topics are way too deep to be treated like routine staff requests. Due process is a vague concept to all of us; none of us were trained in it. But it’s the City’s obligation to provide it under the Constitution.

The city refers to its ambiguous rules and different staff members interpret them differently and present them as if they are the experts. We expect the staff to sweat the details while the council makes policy, but some issues need both. The single biggest policy issue is whether the City follows its own laws as it requires everybody else to do.

The entire set of problems arose because I asked for the bare basics of due process in a free society: a clear unambiguous set of laws that are administered fairly. The CVPP is vague and has been misinterpreted by the City three times already according to the Superior Court. The City recognizes that the CVPP was intended for the project’s development phase with the commitment to review and modify 40 years ago. Even now with the CVPP’s flaws exposed, the City ignores its obligations to residents and homeowners. For the record, I’m again asking that you review and modify the CVPP as required.

CONCLUSION
My message for current and future council members is that it is perilous for the council to make policy on unsupported and unexamined opinions from staff and/or the City Attorney. The Council is not obligated to be correct but is obligated to question and understand.

This is complicated. Thirty years ago when I taught Governance at UCSD I plagiarized a set of ten commandments for corporate directors from a mentor, Hugh Friedman. His Commandment #4 was “Thou shalt not pretend to understand what thou doth not understand.”
If a Council decrees that 8D means that any nonnative tree in the open space is a code violation, then that decision guarantees challenges from current or future property owners. Some future Council will have to deal with them, just as the 2023 council has to deal with the errors of the 2019 Council. 3 May 15, 2023 ITEM 11

CITY COUNCIL AGENDA QUESTIONS/ANSWERS
MAY 15, 2023
Item 4 – Del Mar Annual Preparations for Summer Season

1. In some past years we have had traffic control folks waiving drivers through the stop signs on CDM when congestion is bad in the Beach Colony. Will We do that this summer?
Staff Response: The City does not have dedicated staff available for traffic control other than for assisting during emergency situations or providing temporary relief during extreme traffic events. The City’s contracted law enforcement agency, the San Diego Sheriff’s Department, may also provide traffic control to relieve traffic during emergencies or to provide temporary relief; however, the City does not specifically contract for extra personnel to provide traffic control with frequency or specific events.

2. Is our fire service equipped to address a vehicle fire in an EV? I've read that it requires special action. I've read a "normal" car fire can be put out with water in about 15 minutes, but that an EV fire can take 3 hours and can't be put out with water. As Del Mar has more and more EV's it's just a matter of time before we have an EV fire, and I'm looking for reassurance we are prepared.

Staff Response: The Del Mar Fire Department is trained in fighting electric vehicle fires.

Electric Vehicle fires are resource intensive. Large amounts of water, in some cases greater than 10,000 gallons, must be used to extinguish these fires. If and when an electric vehicle catches on fire the goal is to cool the vehicle before multiple battery cells catch on fire and begin thermal runaway. There are times where the relocation of the electric vehicle is needed. Placing the vehicle in a dirt lot or large concrete/asphalt parking lot away from exposures might be needed. The on-duty battalion chief will assist in finding a suitable location if needed. Toxic water run-off is also a concern. While the Fire Department during an emergency is exempt from collecting water run-off, we feel it is important to be environmentally responsible. Public Works and Hazmat crews will be notified to assist in the safe collection and disposal of the toxic run-off.

The response guidelines for electric vehicles are continually changing. Not only do these incidents take a lot of resources, but the toxic nature of these fires also increases health and safety risks. The toxins are so bad that personal protective equipment cannot be decontaminated and must be disposed of.

Item 11 – Adoption of an Amended Restorative Action Plan for 404 Torrey Point Road

1. What is required where the Restorative Action Plan says: "Remove all trees..." Does "remove" mean just cut them down, and if so, to what height? Does "remove '' mean remove the stumps as well?

Staff Response: The property must be brought into compliance with the Carmel Valley Precise Plan. Per the Court’s Order— this applies to any non-native, non-DRB approved species “planted” in the Open Space Area. This includes tree stumps and seedlings. 1 May 15, 2023 ITEM 4-13
Item 12 – Approval of Mission/Purpose Statements for City Council Subcommittees

1. The tasks described for the Railroad subcommittee substantially overlap the responsibilities of our NCTD representatives [LOSSAN corridor improvements, seasonal platform at the fairgrounds, etc.-- can we have some clarification as to who will do what?
Staff Response: The representatives for the NCTD and SANDAG Board (who will be overseeing all railroad construction related activities) are the same as the Railroad Subcommittee, currently Councilmembers Druker and Gaasterland.

2. I would suggest adding the following to each of the subcommittees' mission statement "Keep the city council apprised in a timely way of subcommittee actions." As written the Mission statements address working with staff, which is important, but make no mention of reporting to council and the public. For councilmembers not on a subcommittee and for the public, a subcommittee report out is the only way to know what is going on.

Staff Response: Staff agrees with the recommendation to include a statement in all the Council subcommittee charters that the subcommittee members will provide timely updates on their actions to the full City Council to provide transparency to the Council and the public.

Item 13 – City of Del Mar Utility Undergrounding Program Update

1. I know we had "issues" with other users (Spectrum, ATT, Etc.) in Tewa. Do we anticipate having those issues again in 1A or X1A?
Staff Response: I believe the “issue” being referenced is the delay from ATT. This issue could occur again simply because of ATT’s internal procedure. ATT will not order wire until the conduit is installed and a final measurement is made. The City will continue working with AT&T to improve this process. SDG&E and Spectrum on the other hand will order wire ahead of time. While this will impact the schedule for pole removal, this will not impact the City’s construction schedule. The City can proceed with constructing other project while the utility companies complete their work.

2. My recollection is the city needs easements in X1A--do we have those? Is there a cost associated with acquiring easements not included in the per foot estimates? Staff Response: We currently roughly anticipate 43 easements for X1A, although the specific amount is still to be confirmed once we receive all SDG&E preliminary plans. This is primarily due to the large number of residences on private streets. Once we have the preliminary design plans, our next step will be to engage with homeowners by providing them with easement and lateral exhibits. Note, we are planning for only 3 easements for 1A which we will coordinate with homeowners on very soon. The plan is to coordinate with homeowners to provide these easements as part of the Undergrounding Program at no cost, or other potential negotiations that require no cost to the City. Note, the Tewa residents provided easements as part of their project at no cost prior to the City forming a district.
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3. Re: CEQA and permit compliance for X1A, have we done a bio survey of the area? Might a focused EIR or other expensive CEQA process be required? Is the cost for a bio survey and CEQA compliance in addition to the per foot estimates? Same for tree removal permit processing, DRB, and CDP--are the costs for these processes in addition to the per linear foot numbers? Do we have an estimate for these costs? Staff Response: The City has engaged the services of Helix Environmental Planning to prepare the technical studies needed for the environmental review for the X1A District.

Helix has conducted preliminary analysis and field surveys based on the available preliminary plans and are waiting on Civil plans from the City to confirm project details, location of project features, and to finish out remaining site inventories; the Civil work is being completed by the City’s consultant and will be forwarded to Helix when available. Note, the civil plans are contingent on SDG&E’s preliminary design plans. The City has also engaged Helix to prepare a Cultural Resources Investigation to identify potential impacts to Cultural Resources. Once Helix completes these two studies, the City will be able to confirm the direction in the environmental review required for the X1A district; based on the preliminary information, Helix currently anticipates that a Categorical Exemption from CEQA can be supported. Assuming the project qualifies as a Categorical Exemption, the review cost for Helix has already been accounted for per the revised Task Order approved by Council at the February 6, 2023, hearing. There are no fees associated with permitting since this is a City project. Planning staff time is however required for permitting.

4. At one point the city was considering pole removal on Via de la Valle and JDB under a separate program--20 A if memory serves. Is this still part of the city wide program?
Staff Response: Via de la Valle and JDB are part of the citywide program but assumed to be funded by Rule 20A. By way of regulations established by the California Public Utilities Commission, some areas of Del Mar are eligible for what is referred to as “Rule 20A” funding (see red areas on attached map for 20A project areas). Rule 20A projects are completed and paid 100% by SDG&E, typically in areas of a community used most by the public, such as along arterial roadways. There is a limited amount of Rule 20A funding available from SDG&E to Del Mar (approximately $68,000 per year), which may be advanced up to five years for an estimated total of $340,000.

The latest on 20A was the City had accumulated a little over $200k for 20A projects and it was anticipated the funds would be available for at least 10 years from May 2022.

Originally, the City was looking at proceeding with the project along CDM/JDB. However, this was put on hold to allow 20A funds to grow. Council liaisons (Quirk and Gaasterland) wanted staff to look at instead using the 20A funds for a project at 25th Street and CDM.

To remove the poles on 25th Street area as a stand-alone project was estimated at over $1.5M. It was decided to postpone the 25th Street undergrounding and complete it in conjunction with UUD 2 underground for efficiencies. Any funds available for 20A would be utilized at that time. This topic needs to be presented to the full City Council for consideration, likely when we are looking at UUD 2.
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5. Can the City Attorney remind the Council what the recusal rules are in all this? All 5 council members are affected to the extent they are in 1 of the UUDs. Some are in 1A. Same for UPAC members--when must they recuse? In the case of councilmembers and UPAC members there may be cases where they are NOT in an active district, but their view will be substantially improved by prioritizing pole removal in a nearby district. Previously we went through a draw straws process to allow councilmembers with a conflict to vote--will we need to do that again? Staff Response: The City Attorney would recommend breaking up/segmenting item 13 between the general update and any discussion or direction specific to UUD 1A in order to allow the conflicted Councilmembers to hear the general update, but then recuse themselves for the UUD 1A discussion. As of the last undergrounding conflict analysis we conducted (in 2021), Councilmembers Druker and Gaasterland were conflicted from UUD 1A because bother their properties were within 1A.

6. Using the numbers from the staff report: "overhead conversion is $719" and " joint trench is $560" for X1A; and for 1A " cost per linear foot of overhead conversion is $703," and " cost per linear foot of joint trench is $589." What is the estimated cost of undergrounding the entire city?
Staff Response: Using the preliminary estimated linear feet of overhead lines in the Project Delivery Plan (August 5, 2019), the preliminary estimated cost is $50.5M to $51.4M. We do not yet have estimates for proposed joint trench for all districts. Note, this is a preliminary estimate and we should have better numbers once UUD 1A and X1A construction bids are received.

7. Must the estimated cost for overhead conversion be added to the cost of joint trenching to get the total true cost?
Staff Response: No, these are two different metrics to measure the total project cost (eg 1A has a cost estimate of $5.38M and 7,650 linear feet of overheard lines to 9,135 linear feet of proposed joint trench. $5.38M / 7,650 = $703 per LF of Overhead and $5.38M / 9,135 = $589 per LF of Joint Trench)
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Del Mar City CouncilMay 15, 2023

Del Mar City Council
May 15, 2023