Agenda, first session — Del Mar City Council, October 16, 2023

Del Mar City Council Meeting Agenda
Del Mar Town Hall
1050 Camino del Mar, Del Mar, California
October 16, 2023 City Council Meeting

INFORMATION RECEIVED

AFTER THE COUNCIL AGENDA

WAS DISTRIBUTED
(“Red Dots”)
1 Melinda Gould
From: City Clerk Mail Box
Subject: FW: Red Dot - City Council Meeting 16 Oct 2023 - Agenda Item #5 From: [email protected] <[email protected]>
Sent: Sunday, October 15, 2023 4:04 PM
To: City Clerk Mail Box <[email protected]>
Cc: Terry TG. Gaasterland <[email protected]>; [email protected]; David Druker <[email protected]>; [email protected]; [email protected] Subject: Red Dot - City Council Meeting 16 Oct 2023 - Agenda Item #5 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.

I’m very happy to hear that City Staff is recommending that the City Council approve a $41,500 agreement with SCI Consulng Group for the assessment piece of the San Dieguito Drive project. I support approval of this agreement and I have some thoughts about how to make sure we have a successful outcome for this project.

The second paragraph of the Discussion/Analysis secon of the Agenda Report is carefully worded:
“Currently, San Dieguito Drive is in a deteriorated condion and in need of repair. For decades, the City has provided informaon and discussed alternaves with the adjacent property owners of San Dieguito Drive about how they could develop a road of sufficient quality and standards so that it could be considered for acceptance into the City’s streets and roadways system and added to the City’s regular street maintenance schedule.” The phrase “adjacent property owners” is vague. Does it refer only to the property owners who own the land under this stretch of road or does it also include the property owners who use the private road to access their property but do not own land under the road? This is a crucial queson that needs to be answered early in the process. I would suggest that the City Aorney be called upon to render an opinion on this legal queson. I think the City’s legal opinion should be communicated to the stakeholders early in the process.

Later in the report:
“As part of the effort to determine the City and residents’ proporonal financial contribuons to the project, the next step would be to hire a specialized assessment engineering firm to conduct a benefit assessment and provide a recommended financing and assessment methodology that most closely associates the special benefits to each parcel.” From hps://www.bpelaw.com/understanding-private-road-maintenance/ “If the easement is owned by more than one person or is aached to parcels of land under different ownership, the cost of maintaining it in repair shall be shared by each owner of the easement or the owners of the parcels of land, as the case may be, pursuant to the terms of any agreement entered into by the pares for that purpose. In the absence of an agreement, the cost shall be shared proporonately to the use made of the easement by each owner.” The Del Mar City Aorney claims that the City of Del Mar is an owner of the easement on San Dieguito Drive. I think that reaching an agreement on the applicaon of state law in this case is an important part of finding a successful soluon to the San Dieguito Drive situaon. If we wait unl SCI has completed its analysis to address this legal queson then I think we may run out of me in negoang an agreement before Ulity Undergrounding in UUD X1A is scheduled to go out for bid in April 2024.
1 October 16, 2023 Item 05
2 Again, I am very happy to hear that “the City intends to synchronize the design and construcon schedules for San Dieguito Drive improvements and the Ulity Undergrounding District X1A (Crest Canyon) project.” In my opinion, addressing the key legal queson regarding responsibility for easement maintenance is an important part of reaching a negoated soluon and must be addressed as soon as possible in the process.

Sincerely,
Amy Cheshire
1561 San Dieguito Drive
619-992-5293
2 October 16, 2023 Item 05

CITY COUNCIL AGENDA QUESTIONS
OCTOBER 16, 2023
Item 5 – AGREEMENT WITH SCI CONSULTING GROUP FOR ASSESSMENT

ENGINEERING SERVICES FOR SAN DIEGUITO DRIVE IMPROVEMENTS

1. Resident Amy Cheshire has submitted a public comment with several questions and comments. I hope staff can address them.

Response: The specialized consultant will analyze and make a recommendation regarding shared proportionate costs for the project, methodology, participants, etc. to create an assessment district for the resident’s share of the cost for the San Dieguito Drive improvements. Creating an assessment district requires a 218-vote of the affected properties, which will be part of the timeline.

Ultimately, the decision to participate will be up to the voting residents. The analysis helps to identify who the project beneficiaries are (ex. residents/City); recommended proportionate share of costs based on benefit; voting requirements to establish an assessment district for resident’ share of costs; process to establish the assessment district and timing; etc.

There will be outreach and meetings with residents throughout the process. The first step is for the consultant to do the initial analysis and develop a recommendation based on their expertise in this area and State law. This is also an important step in demonstrating the legal basis for the City’s participation and overall public benefit (access/connectivity to public street, public safety access, etc.), which is how the City is able to contribute to the project without it being considered a gift of public funds. Staff will engage the City Attorney to provide legal advice throughout the process. Staff will work with SCI as soon as the agreement is approved to map out a schedule of deliverables.

2. I do not see any information for this project concerning the City’s cost allocation of the $1.3 million project. When and how will this be determined? Will SCI be providing any analysis on what the City’s cost allocation should be? The agenda item from 9-5-2023 notes in the Q&A (question #34) that the traffic study by MBI indicated approximately 49% of the use is for public purposes. (Please see snapshot below.) In an email from Clem Brown that was forwarded to all Council Members on 9/21/23 (see below), Clem states that this will be coming before Council in a public forum so that “everyone’s input can be received.” What is the expectation here? Will Council and the public be receiving additional information beyond the traffic study to determine what the City’s allocation will be? If so, when will we receive that information? Will that occur when SCI presents the results of its assessment research? Will it occur when MBI presents its completed design? Response: The $41,500 for assessment engineering services was approved by the City Council on June 20, 2022, and is included in the $1.3 million estimate for the overall San Dieguito Drive Improvements project. SCI will not be evaluating and providing input on 1 October 16, 2023 Items 5 and 9
the estimated project costs. They will be assessing project benefit and recommending proportionate cost sharing for the project costs by the project beneficiaries.

As discussed at the last public meeting regarding San Dieguito Drive, the estimated costs for the project will be further refined as part of the Phase II final project design work. The current estimate is based on conceptual design and is for financial planning purposes only. As part of our normal CIP project process, the final design and updated estimated costs will be provided to the City Council in a public meeting prior to going out to bid for the project. However, it is the construction market and bids received as part of the legally required competitive public bidding process that will ultimately determine actual costs for the project. We anticipate bringing the final design and updated estimated costs to the City Council for consideration in Spring 2024.

The City did some initial analysis to get some sense of proportionate use of San Dieguito Drive, but that was just done as a starting point to understand road usage. The work to be done by SCI, who have an expertise in analyzing benefit and the formation of assessment districts for road maintenance/repairs, is the next step in this process. The results of their analysis and recommendation will be shared publicly and with the Council as part of a future public meeting along with a recommendation from staff in coordination with the City Attorney’s office. We expect the initial benefit assessment to be completed by the end of December/early January at the latest.

3. The agenda item for today also notes the “San Dieguito Drive bid package would be completed along with X1A”. Will there be a distinct and separate bid for the San Dieguito Drive project? Undergrounding project XIA is being funded with Measure Q dollars. I do not believe Measure Q money should be funding any of the San Dieguito Drive repaving project. Can this be clarified by the City? As far as XIA, I believe the City also needs to be prepared for the possibility that the residents of involved in the assessment district for San Dieguito Drive repaving vote it down. Can you please comment on this? Response: The bid package will include the San Dieguito Drive Improvements (Improvements) as an alternate bid item, so it will be separate from the Undergrounding work, but will be included in the overall bid package as an alternative item. This requires the contractor to provide a separate bid for the Improvements, which allows the City to determine the costs separate of the Undergrounding project to ensure that Measure Q funds are only used for Undergrounding related work and not the San Dieguito Drive Improvements. Having this work included in the bid package as an alternative bid item provides the City will flexibility to proceed with the Improvements if everything lines up with the residents to do so, or it allows the City to forego the work without any penalty should the project ultimately not move forward.
2 October 16, 2023 Items 5 and 9
Item 9 – Initial Consideration of an Appeal of the City Manager’s Approval of Encroachment Permit EP22-101

1. Is what is before Council tonight just the appeal of the minor EP issued by the City Manager, or is the applicant’s attempt to reinstate the major EP before us tonight?
Response: At the Initial Consideration tonight, the only matter before the City Council is whether to set the matter for a hearing. The decision from which the appeal has been made will be deemed affirmed unless two or more members of the City Council vote to hear the matter at a (future) “de novo” public hearing, at which time the City Council can then consider whether to accept the Appellant’s Long-Term Major Encroachment request. 3 October 16, 2023 Items 5 and 9
1 Melinda Gould
From: City Clerk Mail Box
Subject: FW: RED DOT AGENDA ITEM 6
From: john imperato <[email protected]>
Sent: Friday, October 13, 2023 1:25 PM
To: City Clerk Mail Box <[email protected]>
Subject: RED DOT AGENDA ITEM 6
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Dear Honorable Mayor and Council Members:

Please do NOT approve the proposed ADU regulations in Agenda Item #6 as written.

Problematic MANAGED RETREAT language already included in an LCP amendment for the North Commercial Zone (Code section 30.24.030(C) that was approved by Terry, Dwight, and Dave on the consent calendar in May 2022 is now being proposed for an LCP Amendment to address ADUs in the entire city (Agenda Item 6).

Approval of this LCPA would negatively impact a large number of homes would not be acceptable to the many residents that live in the beach area.

The proposed language will impact many properties and is burdensome for property owners who build ADUs. The ADU/LCPA proposal includes impactful MANAGED RETREAT language that provides three explicit ways for Del Mar residents to lose their property:
1) “The landowner shall record a notice on the property … that the property owner and all successors in interest waive any rights … to hard shoreline armoring to protect the development… 2) and… that the boundary between public tidelands and private land may shift with rising seas and the development approval does not permit encroachment onto public trust land. 3) As a condition for a building permit approval the property may, in the future, be required to be removed or relocated in accordance with the certified LCP, or by updates to FEMA mapping modeling… “ Waiving shoreline protection, explicit codification of the PUBLIC TRUST doctrine (#2 above) and FEMA map modeling provide 3 concrete mechanisms for forced removal of real property in Del Mar. The FEMA models are most unreasonable - mandating property removal and MANAGED RETREAT based on mere models and not realized or actual events.

The proposed language is straight out of the Coastal Commission playbook and has no part in an unnecessary LCP amendment for ADUs. We have fought this Managed Retreat language for years and people are outraged to see 1 October 16, 2023 Item 06
2 that it was included in an LCPA on the consent calendar in May 2022, even if for a limited geography (North Commercial Zone).

Note that actual shoreline protection is relied upon to protect over 600 residences. Detrimental impacts of the human-made Lake Hodges Dam and Oceanside breakwater both accelerate beach erosion that may lead to migration of the public/private land boundary inland in Del Mar-- even absent the effects of sea level rise.

The NOTICE requirements are also premature and unnecessary title encumbrances. Recorded deed NOTICES will prematurely curtail lending practices that will negatively impact property values and infringe on the liquidity of real estate. Some lenders already interviewed have stated that such recorded NOTICEs would weigh heavily into their lending practices. For example, would they fund a mortgage for a property that would have to be removed at some point in the future? Simple economics so “No”. The real property collateral for the lender is at risk of removal by MANAGED RETREAT in these likely scenarios, leaving the mortgage lender exposed.

The proposed ADU/LCPA language is ambiguous. Does the term “development” in the ADU/LCPA refer to the entire property or just the ADU? From a structural/building perspective, it is difficult to separate an ADU from an existing structure if the two are integrated. Unless, clarified with particularity, the most reasonable interpretation of the ADU/LCPA language is that the entire structure/house will get sucked into Managed Retreat once the ADU permit is approved.

The proposed ADU/LCPA language is likely in conflict with state law. The State has codified its interests in promoting easy-to-build and easy-to-approve ADUs. Now Del Mar comes along and provides 3 ways that the “development”, which at least includes the ADU, is exposed to mechanisms that would mandate property removal as a condition for an ADU permit. These 3 mechanisms of MANAGED RETREAT, as well as Del Mar’s proposed NOTICE requirement, clearly fly in the face of the spirit of the state law, which is to encourage ADUs. Many would be deterred from building an ADU if subject to Del Mar’s proposed ADU/LCPA.

NOTE THAT SEAWALL PROTECTION WAS GUARANTEED BY OUR ORIGINALY APPROVED LCPA UNTIL DWIGHT, TERRY and DAVE voted in the new language for the North Commercial Zone on the consent calendar in MAY 2022.

NOTE: STAC successfully fought against this Managed Retreat and the City Counsel expressly withdrew a prior LCP amendment in the 2019-20 timeframe because it included similar MANAGED RETREAT language. The LCPA withdrawal was spearheaded by Terry Gaasterland and Tracy Martinez, shortly after the latter was elected.

NOTE: Though the Staff Report may deny any intent/inclusion of Managed Retreat, this denial of Managed Retreat is a matter of semantics, leaving the intent of forced property removal present. (Wikipedia recites: “Managed retreat involves the purposeful, coordinated movement of people and buildings away from risks. This may involve the movement of a person, infrastructure (e.g., building or road), or community. It can occur in response to a variety of hazards such as flood, wildfire, or drought.” Further, the State of CA provides a definition of Managed Retreat that is closely aligned with the proposed ADU/LCPA language. (see CA.gov https://documents.coastal.ca.gov>assets>slr) : “MANAGED RETREAT – Moving structures away from hazardous coastal areas. This can happen over the short term in areas with high near-term vulnerabilities, but more often, it is something that would occur over longer period of time. Even so, it is important to plan ahead to understand when impacts are likely to occur because the cost of inaction is higher than proactive adaptation planning.”
2 October 16, 2023 Item 06
3 In sum, Del Mar residents count on you as elected Council members to instruct and guide city staff to nix the language in the proposed ADU/LCPA. Do NOT rely on Staff’s “it’s already in our LCPA for the North Commercial Zone” rhetoric to justify expanding this into to the rest of Del Mar. As people find out about this proposed language and LCP amendment, they are outraged.

Sincerely,
John Imperato/Nancy Stoke (both former STAC members)
10/13/23
3 October 16, 2023 Item 06
1 Melinda Gould
From: LINDA BRANDES <[email protected]>
Sent: Friday, October 13, 2023 4:37 PM
To: City Clerk Mail Box
Subject: Managed Retreat
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.

I am the owner of the single family property located at 1906 Ocean Front, Del Mar, CA 92014 I DO NOT SUPPORT the need to update the LCP as it is working well, including for ADUs; and (2) are strongly opposed to the Managed Retreat language included. If necessary, continue this item to allow for informed public discussion and input.

Very truly yours,
Linda Formo Brandes
1 October 16, 2023 Item 06
1 Melinda Gould
From: City Clerk Mail Box
Subject: FW: Item 6 - Amendment to ADU Regulations - Red Dot for 10/16/23 From: Rich Jamison <[email protected]>
Sent: Friday, October 13, 2023 7:22 PM
To: City Clerk Mail Box <[email protected]>
Cc: Terry Gaasterland <[email protected]>; David Druker <[email protected]>; Dan Quirk <[email protected]>; Dwight Worden <[email protected]>; Tracy Martinez <[email protected]> Subject: Item 6 - Amendment to ADU Regulations - Red Dot for 10/16/23 CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Dear Mayor Martinez and Council Members:

There can be no doubt that the amended ADU regulations will have a major impact on the future built environment and community character of Del Mar.

Our assumption is that a majority of the ADU’s that have been built and are currently proposed are in hillside locations — due to the larger lot sizes — although the Staff Report does not provide that context. This is unfortunate as a local street map plotted with ADU locations would have been helpful.

It is clear to us that the Objective Design Standards for ADU’s are not nearly robust enough especially compared to those for SB 9 projects. It’s puzzling to us why the City would want different standards for ADU’s and SB 9 projects that could theoretically be located next door to each other. None of our peer cities — based on income and coastal location — are using different Objective Design Standards for ADU’s and SB 9 projects. A lack of adequate Objective Design Standards for ADU’s will make more work for the staff, DRB, professional advocates, neighbors and possibly the Council (on appeal). And, what is the benefit to Del Mar? After reviewing the Planning Department’s draft ADU ordinance, we are seriously concerned about the lack of guidelines for siting ADU structures on or near slopes and grading. We are certain that the City — as well as the neighbors living on the hill — do not want to see their hillsides and natural landforms carved up for ADU development. Why not apply the top of slope/toe of slope setback guidelines for SB 9 projects to ADU’s as well? The quantity of grading for ADU’s needs to be expressly limited — as our peer cities have done — and the Del Mar grading permit exemption conditions (attached) of 200 cubic yards, cuts and fills of less than five feet in depth, maximum five to one slope, no modifications to existing drainage patterns, are appropriate grading limits for an ADU. The proposed grading quantity limit of 200 cubic yards includes cut or fill under the building footprint and outside the main building footprint. In addition, the finished grade of any new driveway for an ADU should not exceed 15 percent consistent with our Design Guidelines. These are sensible restrictions on the optimization of ADU’s as a vehicle for increasing market value as opposed to their ostensible purpose of adding affordable housing.

Just as residents on the hill do not want their hillsides carved up for ADU development, they do not want to see cheap modular retaining walls facing public streets. A very large and visually impactful modular retaining wall system on a coastal bluff (first back from the ocean) at the northern gateway to our City was designed in a DRB landscape subcommittee, without public input. These walls do not respect the natural grade and are an eyesore no matter how much landscaping is added to the walls. SB 9 Objective Design Standards for retaining walls should also be applied to ADU development — with reconsideration of split face block as an eligible facing material — and land conservation issues should not be delegated to DRB landscape subcommittees. DRB members have not received specialized training in land conservation, so it would be helpful to them to have some objective standards.

In addition, we think the City should just eliminate lot consolidations, given that they thwart the SB 8 requirement of no reductions in the housing stock. Previously, the applicant for a lot consolidation was required to pay a Housing Reduction Mitigation Fee of $25,000+ that the City could use to build affordable housing. But, now they can just build an ADU that may not add anything to the affordable housing stock unless it is deed restricted for rental use. In the R-2 zone, the ADU can be attached to a single family house on a combined lot, which can result in the kind of monolithic structure that is inconsistent with the goals of our Community Plan. Do we really want to encourage these types of compounds in our neighborhoods if greater housing diversity is the overriding goal? Why is this not being considered for inclusion in the amended ADU ordinance?
Lastly, in this era of climate change, preserving our urban forest and increasing the tree canopy — as dictated by our Climate Action Plan — is extremely important. We risk falling even further behind by not applying a replacement ratio for trees removed for ADU construction - as cities like Laguna Beach have done. With the Planning Commission recommendation to prioritize ground level ADU’s, we should be cognizant of the fact that we stand to lose even more trees. Staff has expressed that there is no need to require the replacement of trees that are not protected 2 October 16, 2023 Item 06
2 by ordinance. We don’t agree, and we feel that it is possible that a day of reckoning is coming for the City, given the indifference shown at the policy level to the importance of maintaining a tree canopy.

In closing, we would like to see the Council go the extra mile to help preserve our unique natural hillside environment from state-mandated overdevelopment, even if the staff and legal counsel continue to be overly risk averse. Once we have lost our unique character to overdevelopment, it will be gone forever.

Sincerely,
Members of the City of Del Mar Ad Hoc Development Review Process Citizen Advisory Committee, 2015-2018 Harold Feder
Richard Jamison
Anne Farrell
John Graybill
Art Olson
3 October 16, 2023 Item 06
3 4 October 16, 2023 Item 06
1 Melinda Gould
From: City Clerk Mail Box
Subject: FW: Red Dot Agenda Item 6: ADU/LCPA
From: john imperato <[email protected]>
Sent: Friday, October 13, 2023 1:34:23 PM
To: Tracy Martinez <[email protected]>; Dwight Worden <[email protected]>; Terry Gaasterland <[email protected]>; Dan Quirk <[email protected]>; Druker David <[email protected]>
Cc: Ashley Jones <[email protected]>
Subject: Agenda Item 6: ADU/LCPA
Dear Honorable Mayor and Council Members:

Please do NOT approve the proposed ADU regulations in Agenda Item #6 as written.

Approval of this LCPA would negatively impact a large number of homes and would not be acceptable to the many residents that live in the beach areas.

The proposed language will impact many properties and is burdensome for property owners who build ADUs. The ADU/LCPA proposal includes impactful MANAGED RETREAT language that provides three explicit ways for Del Mar residents to lose their property:
1) “The landowner shall record a notice on the property … that the property owner and all successors in interest waive any rights … to hard shoreline armoring to protect the development…
2) and… that the boundary between public tidelands and private land may shift with rising seas and the development approval does not permit encroachment onto public trust land. 3) As a condition for a building permit approval the property may, in the future, be required to be removed or relocated in accordance with the certified LCP, or by updates to FEMA mapping modeling… “
Waiving shoreline protection, explicit codification of the PUBLIC TRUST doctrine (#2 above) and FEMA map modeling provide 3 concrete mechanisms for forced removal of real property in Del Mar. The FEMA models are most unreasonable - mandating property removal and MANAGED RETREAT based on mere models and not realized or actual events. 5 October 16, 2023 Item 06
2 The proposed language is straight out of the Coastal Commission playbook and has no part in an unnecessary LCP amendment for ADUs. We have fought this Managed Retreat language for years and people are outraged to see that it was included in an LCPA on the consent calendar in May 2022, even if for a limited geography (North Commercial Zone).

NOTE: SEAWALL PROTECTION WAS GUARANTEED BY OUR ORIGINALLY APPROVED LCPA UNTIL DWIGHT, TERRY and DAVE voted in the new language for the North Commercial Zone on the consent calendar in MAY 2022.

NOTE: Though the Staff Report may deny any intent/inclusion of Managed Retreat, this denial of Managed Retreat is a matter of semantics, leaving the intent of forced property removal present. (Wikipedia recites: “Managed retreat involves the purposeful, coordinated movement of people and buildings away from risks. This may involve the movement of a person, infrastructure (e.g., building or road), or community. It can occur in response to a variety of hazards such as flood, wildfire, or drought.”
6 October 16, 2023 Item 06
3 Further, the State of CA provides a definition of Managed Retreat that is closely aligned with the proposed ADU/LCPA language. (see CA.gov https://documents.coastal.ca.gov>assets>slr) :
“MANAGED RETREAT – Moving structures away from hazardous coastal areas. This can happen over the short term in areas with high near-term vulnerabilities, but more often, it is something that would occur over longer period of time. Even so, it is important to plan ahead to understand when impacts are likely to occur because the cost of inaction is higher than proactive adaptation planning.”
In sum, Del Mar residents count on you as elected Council members to instruct and guide city staff to nix the Managed Retreat language in the proposed ADU/LCPA. Do NOT rely on Staff’s “it’s already in our LCPA for the North Commercial Zone” rhetoric to justify expanding this to impact more of Del Mar. As people find out about this proposed language and LCP amendment, they are outraged.

Sincerely,
John Imperato/Nancy Stoke (both former STAC members)
10/13/23
7 October 16, 2023 Item 06
1 Melinda Gould
From: City Clerk Mail Box
Subject: FW: Red dot item #6 October 16th City Council Hearing From: deftos <[email protected]>
Sent: Sunday, October 15, 2023 12:49 PM
To: City Clerk Mail Box <[email protected]>; Tracy Martinez <[email protected]>; Terry TG. Gaasterland <[email protected]>; Dan Quirk <[email protected]>; Dwight Worden-Private <[email protected]>; David Druker-Private <[email protected]>
Cc: City Manager Mail Box <[email protected]>
Subject: Red dot item #6 October 16th City Council Hearing 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.

Del Mar City Council,
Here are a few points you might consider discussing regarding the draft ADU Ordinance. The issues reflect my understanding of the Coastal Act and constraints imposed by HCD and are not necessarily my preferences for the regulations. The Ordinance will ultimately get vetted by HCD and the Coastal Commission. I found the following two documents informative.
https://www.hcd.ca.gov/sites/default/files/2022-07/ADUHandbookUpdate.pdf https://documents.coastal.ca.gov/assets/rflg/ADU-Memo.pdf

1. Statewide Exemption/Universal ADUs.
§ 65852.2 (e) of State ADU law creates “statewide exemption” or “universal ADUs.” Per the linked HCD document (pages 19-20), HCD interprets § 65852.2 (e) as giving single-family lots a right to three statewide exemption ADUs: One ADU and one JADU within a proposed or existing single-family dwelling unit AND one detached 800 sq ft ADU. Furthermore, local design and development standards do not apply to ADUs created under § 65852.2 (e) (“Notwithstanding subdivisions (a) to (d), inclusive"). There are also allowances for multifamily lots that I did not try to understand. The draft ADU Ordinance does not appear to recognize these aspects of § 65852.2 (e). Can City staff please clarify if it does? 8 October 16, 2023 Item 06
2 2. Local Ordinances, Policies, Regulations and Standards. § 65852.2 (a)(7) states: "No other local ordinance, policy, or regulation shall be the basis for the delay or denial of a building permit or a use permit under this subdivision." § 65852.2 (a)(8) states: “This subdivision establishes the maximum standards that local agencies shall use to evaluate a proposed accessory dwelling unit on a lot that includes a proposed or existing single-family dwelling. No additional standards, other than those provided in this subdivision, shall be used or imposed, except that...a local agency may require an applicant for a permit issued pursuant to this subdivision to be an owner-occupant.” Protected trees:
§ 65852.2 (a)(7) and § 65852.2 (a)(8) might preclude application of the Trees Ordinance (a local ordinance that is not part of the LCP) to ADU development. If so, the request to remove a protected tree for ADU development could not be the basis for denying an ADU application. Also, Torrey pines are not protected by the Coastal Act. If they were, their removal would require a CDP throughout California. They are only protected in Del Mar, and the protection is conferred by the Trees Ordinance. The draft ADU Ordinance requires the application to "depict all protected trees...to ensure protection during construction," but this does not clarify whether removal of protected trees for ADU development will be disallowed. The Trees Ordinance allows protected tree removal for development when the tree is "Obstructing proposed improvements that cannot be reasonably designed to avoid the need for tree removal." This involves discretionary decision making, which is disallowed by State ADU law. The City could consider explicitly disallowing the removal of protected trees for ADU development, but this would be a standard that does not apply uniformly to ADU and non-ADU development Citywide. Under the current draft ADU Ordinance, how would the City respond to a request to remove a protected tree to make room for an ADU, including when alternate sitings are available? Use of ADU only as residential use:
§ 65852.2 (a)(7) and § 65852.2 (a)(8) might preclude the policy of requiring ADUs to be used as a residential dwelling unit and recording a deed restriction specifying this. (In addition, enforcement of this would be very difficult).
9 October 16, 2023 Item 06
3 Restriction to one story if buildable area is available:
§ 65852.2 (a)(7) and § 65852.2 (a)(8) might preclude the standard of requiring attached ADUs to be restricted to one story if another buildable area is available. In addition, this might force development of a more impactful ADU if the available buildable area is more impactful on neighboring properties or public scenic views.

3. Application of the Coastal Act to ADU Regulations and Associated Discretionary Decision Making.

The incorporation of discretionary language “to protect coastal resources” into several of the Development Regulations of the draft ADU Ordinance seems problematic. Consistency with the Coastal Act to protect coastal resources is achieved by enforcement of the City’s certified LCP. This is true currently and after the LCP is amended to accommodate ADU development. Discretionary decision-making is allowed if it is part of the LCP so as to not "alter or lessen the effect or application of the Coastal Act," but it will probably be disallowed by HCD if it is part of the ADU Ordinance and independent of the LCP.

The City's LCP Implementing Ordinances have discretionary decision making that must be complied with to maintain consistency with the Coastal Act, such as in determining whether or not compliance with certain constraints is "feasible." For example, the Bluffs, Slopes and Canyon Overlay Zone Ordinance (BSCOZ) includes discretionary decision-making regarding encroachment into substantial steep slopes, requirements for drainage, clustering of dwelling units, subservience of the structure to the natural landforms on the site, a requirement that "scenic view sheds and open space appearance will be less affected by higher structures" to allow a structure greater than 14 feet, and that "No primary scenic views or scenic views from public streets, roads or pedestrian trails shall be obstructed...unless there is no feasible alternative siting which eliminates or substantially reduces the obstruction that the bulk and scale of the proposed structure have been minimized to the greatest extent feasible commensurate with preserving the physical characteristics of the site." Per the BSC-OZ Ordinance, this discretionary decision making is currently performed by the Planning Commission and Design Review Board. Strict application of this allowed discretionary decision making to not "alter or lessen the effect or application of the Coastal Act" might go a long way to preserving the coastal resources in the Bluffs, Slopes and Canyon Overlay Zone, which has many of the City's most precious coastal 10 October 16, 2023 Item 06
4 resources, including sandstone bluffs, slopes and canyons, high-quality private and public scenic views, an open space appearance, and is nearby to the San Dieguito and Los PenasquitosLagoon. (It is notable that the BSC-OZ references "primary scenic views," which seems to indicate the Coastal Commission approved the protection of private scenic views in this zone and this should be harnassed if possible.) If the City wants to extend the protection of public (and private?) scenic views currently afforded to the BSC-OZ to ADU development throughout the City, it seems it would have to amend its LCP to explicitly do this rather than doing this through the ADU Ordinance itself, which cannot impose discretionary decision making.

The draft Ordinance also has the Planning and Community Development Director making discretionary determinations of whether coastal resources (including public views) not specifically protected by the LCP are impacted without providing objective criteria for making such a determination (will story poles be involved?).

4. Public Noticing and Appeals.

The Coastal Commission states: “The local government must then provide the required public notice for any CDP applications for J/ADUs and process the application pursuant to LCP requirements...” (linked Coastal Commission Document above). Section 30.91.030 (E) of the draft ADU Ordinance describes the noticing requirements and appeals process for CDPs for ADUs: An Administrative Coastal Development Permit is implemented in accordance with DMMC Chapter 30.75, issuance of the CDP occurs without a public hearing, public notice of CDP approval is posted at City Hall, on the City’s website, and mailed to adjacent property owners within five working days of approval, and appeals to the Coastal Commission must occur within ten working days. Can City staff please clarify this process for ADU applications, both inside and outside the Coastal Zone Appeals Jurisdiction? Specifically, will notice of the ADU application (not just its approval) be posted at the site and mailed to neighbors? If not, can this be required? Is an Administrative CDP sufficient? What is the appeals process for applications approved inside vs. outside the Coastal Zone Appeal Jurisdiction?

5. Public Hearing.

State ADU law § 65852.2(l) states: “Nothing in this section shall be construed to supersede or in any way alter or lessen the effect or application of the California Coastal Act of 1976, except that the local government shall not be required to hold public hearings for coastal development permit applications for accessory dwelling units.” While the City is not required to hold a public hearing for the CDP permit, it seems it 11 October 16, 2023 Item 06
5 can require a public hearing. In the current draft ADU Ordinance, there is no such public hearing. The City could require a public hearing, which might facilitate neighborly dialogue that leads to ADUs that are less burdensome to neighbors and the public. Indeed, as noted above, compliance with the current language of the BSC-OZ Ordinance so as to not "alter or lessen the effect or application of the Coastal Act" would seem to require a hearing before the Planning Commission and Design Review Board for ADU development.

6. Parking.

The draft ADU Ordinance harnesses the Coastal Act for parking requirements that exceed those otherwise allowed by State ADU law. It extends these heightened parking requirements either throughout the City (parking required if a garage or carport is converted to an ADU) or to the Coastal Zone Appeals Jurisdictions (parking required). This goes beyond what the Coastal Commission seems to have endorsed, which is that heightened parking requirements can be imposed for “high visitor-serving areas and/or areas with significant public recreational access opportunities, and where on-street parking is heavily used” (linked Coastal Commission Document above). This would seem to apply primarily to the North Beach and South Bluff areas, or to the west of Camino Del Mar/Highway 101, not to the entire City.

7. Slope Analysis for BSC-OZ.

Section 30.91.030(A)(1) of the Draft ADU Ordinance does not include a requirement for submission of a slope analysis prepared by a licensed civil engineer for ADU applications in the Bluffs, Slopes, and Canyon Overlay Zone, as is required for non-ADU development in this zone (DMMC 30.52.110(A)). (This requirement also appears to be absent from the City’s current ADU Ordinance (DMMC 30.91)). A slope analysis is necessary to determine whether an ADU is compliant with the City’s LCP (BSC-OZ Ordinance) by not encroaching into steep slope setbacks.

Thanks for your consideration,
Michael Deftos
12 October 16, 2023 Item 06
1 Melinda Gould
From: KAREN PAGLIIUSO <[email protected]>
Sent: Sunday, October 15, 2023 4:00 PM
To: City Clerk Mail Box
Subject: City Council Meeting Agenda Item #6 ADU Regulations CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Dear Honorable Mayor and Council Members:

Please do NOT approve the proposed ADU Regulations in Agenda Item #6 as written.

Sincerely,
James and Karen Pagliuso
42 yr residents of Del Mar
138 18th St.

Del Mar, CA 92014
1661 Grandview Ave
Glendale, CA 91201
818-667-8501
[email protected]
Sent from my iPhone
13 October 16, 2023 Item 06
1 Melinda Gould
From: Cathie Hays <[email protected]>
Sent: Monday, October 16, 2023 7:23 AM
To: City Clerk Mail Box
Subject: Item #6 - Agenda - October 16, 2023
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Dear Mayor and Council Members,
Please do NOT approve the proposed ADU regulations in Agenda Item #6 as written. As a city, we already fought the use of this Managed Retreat language and the council voted to not include it in our LCP. The proposed language contains key words that were fought against during sea level rise discussions. In trying to fix the ADU problem, do not recreate a problem that was already solved.

As residents of this city, we should be able to count on our elected representatives to stand by what was already agreed to. I suggest you direct staff, when looking for a solution to ADUs, not to include Managed Retreat language that effects other residents' property rights. That this language was used for the North Commercial Zone does not mean your constituents approved it....only that they were unaware. You were elected to represent your residents and we should be able to hold you to your word.

Sincerely,
Cathie Hays
2986 Sandy Lane
Del Mar
14 October 16, 2023 Item 06
1 Melinda Gould
From: Cathie Hays <[email protected]>
Sent: Monday, October 16, 2023 7:52 AM
To: City Clerk Mail Box
Subject: Item #6 - Agenda - October 16, 2023
Follow Up Flag: Follow up
Flag Status: Flagged
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Dear Mayor and Council Members,
I understand that you are trying to fix the ADU problem in our city. And your weekly message (9/22/23)with recommendations to the City Council says nothing about managed retreat. But, in Exhibit 2, Page 21
is buried Managed Retreat language which includes the following:
 Waives shoreline protection
 Explicitly accepts FEMA map modeling - effectively mandating Managed Retreat via removal of houses based on mere FEMA models and not realize or actual events.  Provides 3 concrete mechanisms for forced removal of structures in Del Mar.

This is language the City Council already told the residents would not be part of the city's LCP. Managed Retreat was rejected by the residents and the Council several years ago. Can we not hold you at your word?
Why are we tossing out our existing LCP? ADU's should be held to the existing LCP standards, which allow ADUs, but has protections sought by all residents. Let's allow ADUs that meet the standards in the existing LCP and give residents the protections they want and need.

I ask you to not rewrite the LCP to include Managed Retreat language. Because you already did so in 2022 for the North Commercial Zone, does not make it necessary again. I would like to think, as elected officials, you would protect the property rights of your constituents. In this case, regarding ADUs, you can do so without using Managed Retreat language.

Sincerely,
Tom Hays
2986 Sandy Lane
Del Mar
15 October 16, 2023 Item 06
1 Melinda Gould
From: City Clerk Mail Box
Subject: FW: Agenda Item # 6 Proposed ADU regulations -- Red Dot Comment From: Jennifer Belezzuoli <[email protected]>
Sent: Saturday, October 14, 2023 4:46 PM
To: City Clerk Mail Box <[email protected]>
Subject: Agenda Item # 6 Proposed ADU regulations -- Red Dot Comment 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.

October 13, 2023
Dear Del Mar City Council Members:

Sent via Email to [email protected], Red Dot Comment for October 16, 2023, Meeting RE: Item 6 : 2023 ADU Regulations Ordinance, do NOT approve as proposed specifically To limit Two-bedroom ADUs size to less than 1,000 sq ft by imposing Del Mar FAR ============================================================================== Please do NOT approve the proposed ADU regulations in Agenda # 6 as written.

I feel compelled to direct the Council’s attention to an unfortunate misinterpretation of the laws regarding size limitations on ADUs with more than one-bedroom. This Proposed ADU ordinance could likely be seen as discriminatory and beyond the authority the City of Del Mar possesses to override California state housing laws.

As articulated in the statute, interpretations and FAQs from the California Department of Housing and Community Development (CA-DHCD), the 800 square foot ADU is the minimum that MUST be allowed, irrespective of setbacks and any other potential hindrances. Clearly, a two-bedroom ADU is allowed to be 1,000 square feet without restriction or limitation. {See Law Section 65852.2.(c)(2) below and the specific use of the word “ANY”} Accordingly, the square foot/size restrictions based upon Del Mar FAR in the Del Mar ADU proposed ordinance need to be revised to accommodate 1,000 square feet in an ADU with greater than onebedroom.

Looking at the legislative intent of the CA ADU laws, it would also stand that a two-bedroom residence with up to 1,000 sq. ft. would provide greater flexibility to advance the key legislative purposes noted below. Our Del Mar community is central to many of these purposes, and we should not create a disadvantage to achieving these objectives. Relevant excerpts from the CA- DHCD in their Accessory Dwelling Unit Handbook (ADU Handbook), updated July 2022. (www.hcd.ca.gov):

Much of California’s housing crisis comes from job-rich, high-opportunity areas where the total housing stock is insufficient to meet demand and exclusionary practices have limited housing choice and inclusion. 16 October 16, 2023 Item 06
2 Professionals and students often prefer living closer to jobs and amenities rather than spending hours commuting.

Parents often want better access to schools and do not necessarily require single-family homes to meet their housing needs. …
ADUs also give homeowners the flexibility to share independent living areas with family members and others, allowing seniors to age in place, even if they require more care, thus helping extended families stay together while maintaining privacy.

ADUs provide housing for family members, students, the elderly, in-home health care providers, individuals with disabilities, and others at below market prices within existing neighborhoods.

The ADU laws are clarified, illustrated, and published by the CA- DHCD in their ADU Handbook, updated July 2022. (www.hcd.ca.gov)
The Law:

GOV. CODE: TITLE 7, DIVISION 1, CHAPTER 4, ARTICLE 2 Combined changes from AB 345, AB 3182, AB 881, AB 68, and SB 13 (Changes noted in strikeout, underline/italics) Effective January 1, 2022, Section 65852.2 of the Government Code is amended to read:
65852.2. (a) (1) A local agency may, by ordinance, provide for the creation of accessory dwelling units in areas zoned to allow single-family or multifamily dwelling residential use. The ordinance shall do all of the following …. (c) (1) Subject to paragraph (2), a local agency may establish minimum and maximum unit size requirements for both attached and detached accessory dwelling units.
(2) Notwithstanding paragraph (1), a local agency shall NOT (EMPHASIS ADDED) establish by ordinance ANY of the following:
(A) A minimum square footage requirement for either an attached or detached accessory dwelling unit that prohibits an efficiency unit.
(B) A maximum square footage requirement for either an attached or detached accessory dwelling unit that is less than either of the following:
(i) 850 square feet.
(ii) 1,000 square feet for an accessory dwelling unit that provides more than one bedroom. (C) Any other minimum or maximum size for an accessory dwelling unit, size based upon a percentage of the proposed or existing primary dwelling, or limits on lot coverage, floor area ratio, open space, and minimum lot size, for either attached or detached dwellings that does not permit at least an 800 square foot accessory dwelling unit that is at least 16 feet in height with four-foot side and rear yard setbacks to be constructed in compliance with all other local 34 development standards.

This provision of the law is further summarized by CA-DHCD- on pages 6-7 of the Handbook:

AB 68 (Chapter 655, Statutes of 2019), AB 881 (Chapter 659, Statutes of 2019), and SB 13 (Chapter 653, Statutes of 2019) AB 68 (Chapter 655, Statutes of 2019), AB 881 (Chapter 659, Statutes of 2019), and SB 13 (Chapter 653, Statutes of 2019) build upon recent changes to ADU and JADU Law, specifically Government Code sections 65852.2 and 65852.22, and further address barriers to the development of ADUs and JADUs. This legislation, among other changes, addresses the following:
• Prohibits local agencies from including in development standards for ADUs requirements on minimum lot size. (Gov. Code, § 65852.2, subd. (a)(1)(B)(i).)
17 October 16, 2023 Item 06
3 …
• Prohibits a local agency from establishing a maximum size of an ADU of less than 850 square feet, or 1,000 square feet if the ADU contains more than one bedroom and requires (emphasis added) approval of a permit to build an ADU of up to 800 square feet. (Gov. Code, § 65852.2, subs. (c)(2)(B) and (C).) To provide even greater illustration to the application of the laws, the CA-DHCD provides a Frequently Asked Questions (FAQs) section of the Handbook that addresses these specific provisions.

From CA-DHCD ADU Handbook beginning on page 9 (emphasis added):

SECTION 2 Zoning, Development and Other Standards FAQs
B) Size Requirements (PAGE 13)
FAQ: Can minimum and maximum unit sizes be established for ADUs? Yes. A local government may, by ordinance, establish minimum and maximum unit size requirements for both attached and detached ADUs; however, maximum unit size requirements must allow an ADU of at least 850 square feet, or 1,000 square feet for ADUs with more than one bedroom. For local agencies without an ADU ordinance, maximum unit sizes are 1,200 square feet for a new detached ADU and up to 50 percent of the floor area of the existing primary dwelling for an attached ADU (at least 800 square feet). Finally, the local agency must not establish by ordinance a minimum square footage requirement that prohibits the development of an efficiency unit as defined in Health and Safety Code section 17958.1.

FAQ: Can a percentage of the primary dwelling be used to limit the maximum size of an ADU? Yes. Local agencies may utilize a percentage (e.g., 50 percent) of the primary dwelling as a maximum unit size for attached ADUs, but only if it does not restrict an ADU’s size to less than the standard of at least 850 square feet (or at least 1,000 square feet for ADUs with more than one bedroom). Local agencies shall not, by ordinance, establish any other minimum or maximum unit sizes, including limits based on a percentage of the area of the primary dwelling, that precludes an 800 square-foot ADU. (Gov. Code, § 65852.2, subd. (c)(2)(C).) Local agencies utilizing percentages of the primary dwelling as maximum unit sizes can consider multi-pronged standards to help navigate these requirements (e.g., shall not exceed 50 percent of the dwelling or 1,000 square feet, whichever is greater). This emphasis added to illustrate interpretation of the limitations which would be acceptable.

F) Bedrooms (page 17)
FAQ: Can a limit on the number of bedrooms in an ADU be imposed? A limit on the number of bedrooms could be construed as a discriminatory practice towards protected classes, such as familial status, and would be considered a constraint on the development of ADUs. Building code standards for minimum bedroom size still apply.

Thank you for addressing these inappropriate provisions in the proposed ADU regulations and making the required changes.

Sincerely,
Jennifer Belezzuoli
18 October 16, 2023 Item 06
1 Melinda Gould
From: Ruth Evans <[email protected]>
Sent: Monday, October 16, 2023 8:06 AM
To: City Clerk Mail Box
Subject: 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.

Dear City Council, Please do not pass item #6 as written. Also please do not make any changes to our managed retreat plan. Thank you, Ruth and Ed Evans, 2115 Balboa Avenue, Del Mar, CA 92014 19 October 16, 2023 Item 06
1 Melinda Gould
From: Jerry Jacobs <[email protected]>
Sent: Monday, October 16, 2023 9:31 AM
To: City Clerk Mail Box
Subject: Re: Reddit For Item 6 on City Council agenda 10/16/2023 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.

The City needs to delete section 30.91.040(X), 1, 2ab, 3abc and 4 in its entirety. > This section includes sea level rise noticing clauses in Del Mar's draft ADU ordinance. >
>
>> Please reject all managed that is is included in the proposed ADU ordinance. >>
>> I am wonder why managed retreat is even included in ADU issues. They are two separate issues. >>
>> After the years spent on STAC and all the issues with managed retreat I don’t think that managed retreat is appropriate of the North zone either. All this will do is limit any new development as any developer has to satisfy lenders, investors or buyers for the property. Lenders will not take unnecessary risk of being involved in a project that could have over reach by government. This it will not solve housing issues. It will likely make them worse over time. >>
>> All managed retreat references need to be removed from any ADU ordinance. They should be completely separate.
>>
>> The City decided once already it did not need the costal commissions managed retreat and it did not have any benefit to the City of Del Mar. The City needs to stand up for the previous work of STAC.
>>
>> Thank you. Please do not allow this to proceed without removing the managed retreat language. >>
>> Jerry Jacobs
>> On behalf of the Del Mar Beach Preservation Coalition >>
>>
1 October 16, 2023 Item 06
1 Melinda Gould
From: john imperato <[email protected]>
Sent: Monday, October 16, 2023 10:41 AM
To: City Clerk Mail Box
Cc: Tracy Martinez; Terry TG. Gaasterland; Dan Quirk; Dwight Worden; David Druker Subject: Fw: Red Dot City Council Meeting Agenda Item #6 CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Dear Honorable Mayor and Council Members:

Thank you for considering a balanced approach to accommodate for the effects of sea level rise in the proposed ordinance.

The proposed ADU language would be appropriate for adoption for Del Mar's ordinance:

KEEP**KEEP**KEEP: Proposed 30.91.040(X).1
X. If a proposed ADU is located on a parcel that falls entirely or partially within the special flood hazard areas identified on the 2019 FEMA Flood Insurance Rate Map (FIRM) or its updated versions, the following shall apply as a requirement for the administrative Coastal Development Permit:

1. Development shall be located and designed, including elevation and flood proofing, to minimize flood damage and avoid flood hazards including those from impacts of projected sea level rise and flooding over the anticipated lifetime of the proposed structure using the best available science on sea level projections and in consideration of applicable adaptation measures.

The proposed language below has absolutely no place in Del Mar's ADU ordinance and should be removed:

DELETE**DELETE**DELETE: Proposed 30.91.040(X2, X3, X4) in their entirety X.2. The landowner shall record a notice on the property and notice all occupants that:
a. The development is located in the Floodplain Overlay Zone (2019 FEMA FIRM or its latest version), which applies to flood prone properties that are subject to periodic inundation due to flooding, including projected sea level rise; and
b. The property owner and all successors in interest waive any rights under Coastal Act Section 30235 and related LCP policies to hard shoreline armoring to protect the development and indemnify the City from any claims related to property damage or personal injury.

X.3. Where necessary to ensure coastal resource protection and compliance with the Coastal Act based on the site-specific context, the notice required per Section 30.91.040(X)(2) shall also reflect the following:
1 October 16, 2023 Item 06
2 a. That sea level rise and flooding could render it difficult or impossible to provide services to the site.
b. That the boundary between public land (tidelands) and private and may shift with rising seas and the development approval does not permit encroachment onto public trust land. c. That additional adaptation strategies may be required in the future to address sea level rise and flooding consistent with the Coastal Act and certified LCP.

X.4. The permittee shall acknowledge as a condition of permit approval that while the approved development meets all current flood safe requirements applicable at the time of approval, the development may, in the future, be required to be removed or relocated in accordance with the certified LCP, or by updates to FEMA mapping modeling, if the Building Official determines the development becomes unsafe for occupancy due to flood hazard conditions. 2 October 16, 2023 Item 06
1 Melinda Gould
From: Debbie Church <[email protected]>
Sent: Monday, October 16, 2023 11:00 AM
To: City Clerk Mail Box; Terry Gaasterland; Tracy Martinez; Dan Quirk; Dwight Worden; David Druker
Subject: Red dot on ADU
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Dear City Council,
Please direct staff to remove all language referring to managed retreat as recommended by leading members of STAC and in particular, delete section 30.91.040(X) 1, 2ab, 3abc, 4 completely.

We need hyper vigilance so that no more of this language sneaks in as it did for the commercial north zone.

Debbie and Brian Church
[email protected]
27th st
1 October 16, 2023 Item 06
1 Melinda Gould
From: joseph libretti <[email protected]>
Sent: Monday, October 16, 2023 11:18 AM
To: City Clerk Mail Box
Subject: Del Mar Managed Retreat
Follow Up Flag: Follow up
Flag Status: Flagged
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Dear City Clerk,
I would like to go on record to oppose Managed Retreat of the Del Mar community and all Del Mar Beaches.

Thank you for your consideration.

Joseph Libretti
1 October 16, 2023 Item 06
1 Melinda Gould
From: Brad Walters <[email protected]>
Sent: Monday, October 16, 2023 11:35 AM
To: City Clerk Mail Box
Subject: 10/16 red dot, item 6 (ADUs)
Follow Up Flag: Follow up
Flag Status: Flagged
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Dear City Council,
As someone who supports ADUs as actual housing units, I’m writing to request the removal of the misguided “dwelling unit” deed restriction requirement in our draft ADU regulations. Why:
 It blocks future housing: If someone wants to build a granny flat now while construction is cheaper, then use the space as (e.g.) a yoga space or whatever for a few years, THEN have Granny move in at some point in the future whenever she needs it, this language would seem to prevent that. So to say that this restriction is “furthering the goals of ADU legislation” (staff report, Page 5) simply isn’t accurate — since in the example above Granny’s future home can’t be built yet, may therefore never get built, and Granny would then have to occupy a housing unit elsewhere. To put a finer point on it: If an ADU would be used as a “dwelling unit” for 45 out of 50 years and for some other purpose 5 years out of 50, that ADU couldn’t get built under this language despite providing decades’ worth of housing.
 It’s a response to anec-data: This verbiage is designed to appease our anti-ADU neighbors who might be inclined to assume or report in their own best interest that “most” or even “many” ADUs aren’t or won’t ever be used for housing. But where are the data proving these assumptions? We must not craft policy in response to anec-data.
 It adds unnecessary red tape: Any deed restriction adds a significant layer of red tape and could make a property far more difficult to sell later, which could deter a homeowner from building an ADU even if it’s entirely for housing purposes from the get-go. Deed restrictions under the right circumstances are worthy, but in this case, such language can only serve as a deterrent.  Is it even enforceable? I’m no attorney, but the way state law appears to define the term “dwelling unit,” a current resident could use their new ADU as a nap room and arguably satisfy that term. If my reading is accurate, the language is all but toothless under the law, so again, why even include it? (Would appreciate being corrected if I’m wrong, though.)
In short: Any “dwelling unit” deed restriction requirement would not be a catalyst for new housing and indeed could serve as a roadblock to it — countering the overall goals of state ADU law.

Respectfully,
Brad Walters
Stratford Ct.
2 October 16, 2023 Item 06
1 Melinda Gould
From: Tina Thomas <[email protected]>
Sent: Monday, October 16, 2023 11:41 AM
To: City Clerk Mail Box
Subject: Agenda Item #6
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.

Del Mar City Council,
Please do not approve the ADU regulations in agenda item #6 as written. It is unclearly written and introduces managed retreat back in with the possibility of "developments" being required to be removed. The following language is of concern and will affect our properties and values.
 Waives shoreline protection
 Explicitly accepts FEMA map modeling - effectively mandating Managed Retreat via removal of houses based on mere FEMA models and not actual events.  Provides 3 concrete mechanisms for forced removal of structures in Del Mar.

Please take the time to review this and do what is right for Del Mar.

Thanks,
Tina Thomas
3 October 16, 2023 Item 06
1 Melinda Gould
From: Heather Lindsey <[email protected]>
Sent: Monday, October 16, 2023 11:49 AM
To: City Clerk Mail Box
Subject: Red-dot Item #6 10/16/23
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Dear City Council Members,
In light of information new to me, I wanted to add to my red-dot submitted on 10/5/23.

I still ask that the ADU language as proposed not be accepted today. I ask that we remove sections 30.91.040(X) 1, 2ab, 3abc, 4.

In my red-dot of 10/5, I did not realize that the language to which I objected had already been passed on 3/7/22. However, that does not mean that the language should be accepted again today. Quite the opposite in fact. A suggestion that we can add it now because it was already accepted then, is the exact reasoning why we should not. It exemplifies how if you let the language in one place it sets a precedent for it in other places.

Additionally, consensus was that managed retreat comes in many forms. Just because the phrase “managed retreat” or “planned retreat” or “adaptive retreat” or “strategic retreat”, or whatever the newest phrase, is not specifically stated, it does not mean that managed retreat is not there and that managed retreat is not the logical outcome.

We decided that managed retreat in regards to private property is not correct for Del Mar; that does not change depending on the fact pattern.

I also ask that we examine the message that we, as the City of Del Mar, sent the California Coastal Commission and other stakeholders in accepting this managed retreat language in 2022 and the message we would again send in 2023 if this language was accepted. To me the message reads as though Del Mar is now willing to cede on managed where before was not willing to cede what was not required. I question whether this is the right message to send to other stakeholders.

Lastly, and the main reason I write this second correspondence, I ask that we consider modifying the language that was accepted on 3/7/22 and remove the portions that allow for managed retreat in regards to private property in the LCP.

Respectfully,
Heather Lindsey
4 October 16, 2023 Item 06
City of Del Mar
Memorandum
________________________________________________________________________________________________________ TO: Honorable Mayor and City Council Members
FROM: Amanda Lee, Principal Planner
DATE: October 16, 2023
SUBJECT: Red Dot Item 6: Introduction of an Ordinance to Amend the City’s Accessory Dwelling Unit Regulations and Certified Local Coastal Program Item 6 on the October 16, 2023, City Council Agenda is introduction of an Ordinance to amend the City’s Accessory Dwelling Unit (ADU) Regulations and certified Local Coastal Program (LCP). Ordinances are required to be introduced in writing. In response to submitted correspondence regarding the proposed standard for ADUs proposed in special flood hazard areas, City staff is proposing to modify the proposed development standard in Ordinance Section 30.91.040(X) to address community concerns and meet the standard of review necessary to demonstrate the proposed LCP amendment will address sea level rise.

As such, staff recommends the Ordinance include a revised Section 30.91.040(X)(1) to clarify the existing LCP provision for a system of shoreline protection in the Beach Overlay Zone per the Beach Preservation Initiative (BPI) is existing adaptation that is factored into floodplain review; and that subsections 30.91.040(X)(2) through (4) be deleted and replaced with a new Section 30.91.040(X)(2) that reads as follows with new text shown in underline:
(X) If a proposed ADU is located on a parcel that falls entirely or partially within the special flood hazard areas identified on the 2019 FEMA Flood Insurance Rate Map (FIRM) or its updated versions, the following shall apply as a requirement for the administrative Coastal Development Permit:
(1) Development shall be located and designed, including elevation and flood proofing, to minimize flood damage and avoid flood hazards including those from impacts of projected sea level rise and flooding over the anticipated lifetime of the proposed structure using the best available science on sea level projections and in consideration of applicable adaptation measures including the system of shoreline protection in the Beach Overlay Zone per the Beach Preservation Initiative.
(2) Proposed development shall comply with the certified Local Coastal Program.

October 16, 2023 Item 6
1 October 16, 2023 Item 06
2 October 16, 2023 Item 06
1 Melinda Gould
From: City Clerk Mail Box
Subject: FW: ADU Proposal/Deed Restrictions/Red Dot
From: Toni Cieri <[email protected]>
Sent: Friday, October 13, 2023 2:38 PM
To: Planning Mail Box <[email protected]>; Dwight Worden <[email protected]>; [email protected]; Terry Gaasterland <[email protected]>; David Druker <[email protected]>; Tracy Martinez <[email protected]>
Subject: ADU Proposal/Deed Restrictions/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.

To: Del Mar City Council
In my 35 years as a Del Mar Real Estate Broker and a Del Mar Resident, my experience has been that a deed restriction or covenant that "runs with the land "on the title of a property can damage the property owner in the following ways:

1. Harms the market value and desirability of the property to prospective buyers which can damage the property owner potentially millions of dollars.

2. Banks may be reluctant to finance/refinance the property with the restrictions.

3. Title insurance will be compromised with the cloud on title.

4. A new or existing owner may want to build a new home or convert a garage back to a garage and may not be allowed due to the
restrictions.

The City could be exposed to expensive litigation(again) costing us property taxpayers millions of dollars.

In my opinion, there should be an agreement with the current homeowner of the restrictions of an Adu and not a covenant recorded on the property. The agreement could address the conditional issues in an event of a future sale.

Toni Cieri
255 20th St.

DRE #00780968
Broker Associate
Phone:858-229-4911
BERKSHIRE HATHAWAY California Properties
www.Delmarhouses.com
1 October 16, 2023 Item 07
Dear City Council: 10/12/2023
Re: Red Dot Letter re: Agenda Item 9 - Appeal of EP 22-101 Overview
We would respectfully ask that the city council support the city manager’s current request to have the appelants vacate the alley of all illegal plantings and improvements and offer the following in support of our position.

First, this is not “their first rodeo”. Many years ago the appelants had to remove an outdoor fireplace that they built to completely block the public from this same alley. They know their rights are limited but have been conducting a land grab slowly over time in the hope that an egregious but slow takeover of the alley would not be challenged.

There have been numerous violations of the March 1998 encroachment permit they were granted. These violations have been intentional and systematic in an attempt to convert the public alley into their private backyard.
• The applicants have illegally taken over the alley as their own yard and property including the following.
o Planting a row of 20-40 foot tall trees on our property line o Grading the alley
o Installing planter bed of all types
o Installing retaining walls
o Bringing in large amounts of decomposed granite to create “patio seating areas” in the alley with rock retaining walls. o Building planter beds throughout the alley
o Planting the alley with dozens of trees and plants
o Installing irrigation in the alley
o Installing drainage in the alley
o Installing overhead café lighting in two “patio seating areas” they created in the alley
o Placing two outdoor dining tables and multiple chairs in two “patio seating areas” they created in the alley
1 October 16, 2023 Item 09
The 1998 EP is very clear in its verbiage as to what is allowed and also includes a drawing that clearly outlines what is allowed. A copy of the EP verbiage and diagram are attached hereto for easy reference. None of the illegal additions outlined above are allowed per the EP.

Key verbiage in the EP covenant includes:
“Permittee shall use and occupy the City Property only in the manner and for the purpose described in attachment D-1 and as shown on the map in attachment D-2”.

The D-1 attachment states:
“Encroachment shall be limited to the placement of private retaining walls, landscaping, walkway pavement, and driveway pavement as depicted on the site plan found on attachment D-2”. “Said improvements and landscaping shall not prevent public use of the alley in any form or manner”.

Clearly, the appelants have a been in abject violation of the 1998 EP and have not respected or honored the rights that were granted to them.

The history of their abuses goes back to the previous owner of our home (over 15 years ago) – Ms. Redman was very upset that the appelants planted all those trees in the alley on our property line without consulting Ms. Redman.

The applicants took over this unpermitted space even though they had previously been reprimanded for installing an outdoor kitchen (stone fireplace, chimney etc) that blocked the alleyway. At that time, the city rightfully had the applicants remove that unlawful improvement. We believe these new violations should be treated the same way. i.e. Remove the unlawful items (again!). We believe their appeal request for expanded rights is completely absurd in light of their repeated violations.

The applicants have verbally refused us access to the alley – we have a recording of Mike’s voice mail to us stating that we were not to use the alley to access our yard. The hypocrisy is tremendous when considering that they had contractors using (and blocking) the alley every single work day 2 October 16, 2023 Item 09
for seven months straight for the construction of an ADU. This hypocrisy should not be rewarded.

We purchased our home with a reasonable expectation that the public alley would not be granted to others for their personal use at our expense and over our objections.

The applicants have repeatedly harassed our yard workers when working in our back yard (telling them not to get anything (pine cone, dirt clod etc.) on “their property” when in fact it’s of course a public alley) making it uncomfortable for our workers and us to spend time in our back yard.

Our property value would be impacted negatively if this expanded use of the alley is allowed as it further clouds untethered usage of (by us or any future owners), and access to, what is supposed to be a public alley.

We understand the applicant’s desire for privacy – and just like everywhere else in our city and beyond, this should be accomplished with plantings or fences on THEIR property and not in a public alley or on our property line whereby it has a negative impact on us as neighbors.

The applicants have consistently abused the rights of the original 1998 EP.

We do not believe they should be rewarded with expanded rights in the face of their repeated violations and our strong objections as an adjacent homeowner.

We should have every bit as much right to the use and enjoyment of this public alley as our neighbors and approving any expanded rights (by supporting an appeal of the city’s request to remove their illegal items) to another homeowner would in turn reduce our rights and therefore should be rejected.

Furthermore, we do not believe there is any drainage issue in this alley based on its very slight grade and the significant amount of vegetation throughout the alley above. As such, no appeal should be supported under the guise of drainage concerns by the applicants. If in the future any issues are discovered, this is something all adjacent homeowners and the city could easily address without granting permanent preferential rights for use and enjoyment of the alley to one homeowner at the expense another. If 3 October 16, 2023 Item 09
the city believes that groundcover would be beneficial for drainage, we would be happy to plant it at our expense, without the need for an EP.

Del Mar’s public alleys are part of its charm and homeowners lucky enough to be adjacent to them also enjoy a buffer zone of open space between other neighbors. These should not be converted preferentially to homeowners as their private yards
Having open space next to our property contributes to its value and appeal.

Reducing those rights has the opposite impacts. We would like to have the rights that come with an adjacent alley enforced by the city.

We have spoken with a number of city residents who live adjacent to various public alleys and every single one was opposed to this appeal being given consideration and every single one opposes the concept of granting increased rights to one homeowner over another.

We believe that the best solution at this time is for the appelants to vacate the alley of everything they’ve done that was not specifically identified in the original 1998 EP. The appelants should do any future plantings and landscape improvements in their own property and not in the public alleyway. As summarized above we believe the city council should support the planning department’s request to vacate the alley. This means the appeal be denied and that they become compliant with their existing 1998 EP including.

Removing all of the trees planted in the alley on our property line both in the permitted area and the completely unpermitted area. The 1998 EP was very clear that no planting was allowed other than what was outlined in the site plan accompanying the EP, and no landscaping was approved on our property line. This line of trees is detrimental to the growth of our fruit trees, our property value and our use and enjoyment of our own property as well as the alley. Completely vacate the unpermitted area of all unapproved additions and plantings which includes removing all of the remaining plants, trees, birds of paradise, planter beds, irrigation, furniture, lighting, and everything/anything else placed in this space illegally.

Thank you,
John McNulty
4 October 16, 2023 Item 09
Alley Specifics
The city’s requests involve two distinct areas of the public alleyway. The first is in the Southerly most 100’ of the public alleyway where the appelants were in fact granted an EP with very specific rights including a driveway to park their car. Attachment D-1 to the EP specifically states that the encroachment shall be LIMITED TO the placement of private retaining walls, landscaping, walkway pavement, and driveway payment as depicted on the plan found on Attachment D-2. All of this was allowed ONLY in this southerly 100 feet. Nevertheless, the appelants disregarded the EP and planted a row of trees right on our property line in the public alleyway even though it was clearly forbidden. The EP is very clear – it specifically states what was allowed and that said improvements and landscaping shall not prevent public use of the alleyway IN ANY MANNER (which includes blocking us access from our own property of course, not just from the end of the alley).

The second area in which the McManus’ have egregiously violated the rights in the public alleyway is the area beyond (North) of the area prescribed in the 1998 EP. In this area, they were never granted any rights whatsoever. Again, nevertheless, they treated this part of the alley as their own yard by enclosing it with many more tall trees on our property line and adding garden walls, irrigation, drainage, overhead café style lighting, multiple outdoor furniture sets and more as outlined above. 5 October 16, 2023 Item 09
1998 EP “D-1”
6 October 16, 2023 Item 09
1998 EP “D-2”
7 October 16, 2023 Item 09
1 Melinda Gould
From: Alana McNulty <[email protected]>
Sent: Friday, October 13, 2023 1:37 PM
To: City Clerk Mail Box
Cc: Matt Bator; Karen Brindley; Ashley Jones; John McNulty Gmail Subject: Red Dot Opposition Letter - City Council 10/16/23 Agenda Item #9 - Appeal of EP22-101
Attachments: ABM City Council Letter 10-23.docx
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Dear City Council,
I am writing in support of the City of Del Mar’s proposed EP22-101.

We thank you for your time in considering this matter and look forward to having the opportunity to discuss it with you on 10/16.

All my best,
Alana McNulty
1 October 16, 2023 Item 09
Dear City Council:

Re: Red Dot Opposition Letter – City Council Agenda Item 9 – Appeal of EP 22-101 We fully support the city’s request (EP 22-101) for the removal of the McManus illegal development in the public alleyway. We have reviewed the McManus appeal to this requirement, and we are not in agreement with their attorney’s conjured environmental concern as a rationale as to why they should continue to have 100% public alleyway property appear to be their own personal private backyard. This would set a very dangerous precedent in Del Mar by encouraging residents to take over public land, extensively rip out native or nonnative plants, plant foreign hedges on the far side of the public land thus making the land appear to be part of their personal property, and then claim they can’t remove the illegally planted hedges due to carbon sequestration (ignoring all of the carbon sequestering vegetation that they removed to create their personal space).

We feel that it is important to keep in mind that the McManus’ have violated the rights generously granted to them by the City of Del Mar in the 1998 EP-97-51 encroachment permit (the “1998 EP”) in a multitude of ways and many times over the years. For clarity, the 1998 EP was very clear about what was allowed and what was not allowed. It allowed them to use a small portion of the public alleyway as their driveway so long as they don’t prohibit access by the public (which they have violated). It specifically called out structures and plantings that were allowed and was clear that no other structures/plantings were allowed in this permitted area (extensively violated). Beyond the 2,000 sq.ft. area of the alley impacted by the EP, they have no further rights than anyone else to use this land. Nevertheless, they have egregiously grabbed public land, enclosed it for their own with tall foreign hedges, and made it into their own personal backyard with overhead café restaurant style lighting, terracing, raised planter beds, decomposed granite patio areas, personal dining tables, gardens, and much more.

A brief history of the permits and process:
1998 EP:

This document graciously allowed the McManus to use the far southerly end of the alley as a driveway. The 1998 EP was very clear that ONLY the improvements allowed as described in Exhibit D-2 were allowed. The verbiage specifies only items “as depicted in exhibit D-2” of the EP, and LIMITED to as depicted in Exhibit D-2, which is a publicly recorded document.

A brief history of what transpired after the 1998 EP was granted to the McManus’:

1. The McManus’ built a large illegal outdoor fireplace across the alley (that was clearly not depicted in Exhibit D-2) and blocked public access to the alley in direct violation of the EP. The City subsequently made them remove this violating fireplace.

2. In the area north of the driveway (where no permit exists) a. The McManus’ illegally removed native bamboo and planted a row of commercial bird of paradise that are now 30-40 feet tall - this blocks and encloses the alley on the north.
2 October 16, 2023 Item 09
b. They also planted a row of pittosporum hedges on the west side of the alley, right along the McNulty property line on the far side of the alley, thereby fully enclosing the alley for their private use.
c. They built several raised planter beds and planted multiple rose bushes d. They installed permanent irrigation in the alley
e. They built small rock retaining walls and created patio areas made up of decomposed granite.
f. They placed two full patio dining sets in the patio areas created. g. They installed overhead restaurant style lighting above the dining tables

3. Recently (~2021), they also planted additional pittosporum hedges along the alleyway and the McNulty property line in the area of the driveway (where no additional plantings were allowed as clearly designated in Exhibit D-2 of their 1998 EP) As a result of the blocking hedges and all of the additional illegal development placed in the alleyway, I actually initially thought this land belonged to the McManus’. When our kids would play in the alleyway, they would tiptoe into this space to retrieve balls because it appeared to be McManus’ private property.

To ensure we are all on the same page, the area of the alleyway that they have taken over involves two distinct regions, both of which have been violated.

Encroachment Permit Area: This is the southerly most 100’ portion of the alley and encompasses approximately 2,000 square feet (the alley is 20 feet wide). This is where they currently have their driveway. The EP is very specific about what is allowed, and they are in abject violation of this permit in this area for the following reasons:

1. It is very specific stating that the landscaping they were allowed was LIMITED to the plantings that are depicted in Exhibit D-2 which does not include the row of pittosporum bushes nor any of the other landscaping on our property line in this area that they have planted.

2. It is conditioned upon allowing the public to continue to use the alleyway (including their driveway) and yet they verbally forbade us from using the alleyway to bring materials into our yard to plant our fruit trees (recorded voice message available upon request).

3. On multiple occasions they harassed our workers not to get “even a pinecone or clod of dirt” on “their property” although it is clearly NOT their property – it is a public alleyway to which the City has graciously permitted them to also use as their driveway.

Completely Non-Permitted Area: This area is the public alleyway North of their driveway. They have no rights AT ALL to this land, beyond that of any other Del Mar resident as the EP does not apply to this much larger portion of the public alley. Yet, they have illegally enclosed a large portion of this area to use it for their own personal use. Their abuses of public property are astounding and include:
3 October 16, 2023 Item 09

1. Planting a very tall row of pittosporum and other bushes on OUR PROPERTY line adjacent to the alleyway (and no plantings on their property line adjacent to the alleyway) making this area appear to be their 100% personal property.

2. They brazenly added irrigation, café lighting, picnic tables, rose gardens, terracing, etc. into this 100% public alleyway space.

3. Shockingly, their own property line is not even adjacent to a large portion of this additional area that they have commandeered – OURS does The carbon sequestering rationale provided by the McManus’ for keeping the non-native pittosporum hedges they illegally planted to make this area look like their private property is absurd:

1. Pittosporum shrubs are inefficient sequesters of carbon yielding 1/10th to 1/100th the amount of carbon sequestration as compared to a tree.1

2. The cited Hooded Oriole does not live in pittosporum shrubs, as evidenced by knowledge experts (see attached findings), they prefer palm or yucca or other deciduous trees (pittosporum is evergreen and not deciduous).2

3. An appropriate course of action would be for them to plant trees ON THEIR OWN PROPERTY if they would like to offset the small impact of the illegal pittosporum being removed. If they plant palm or yucca, they might even provide a nesting home for the Hooded Oriole.

Moreover, it is ironic that they state they have applied for a “Registered Backyard Habitat” permit with the National Wildlife Federation for land that is clearly owned by the city.

We doubt that the people who signed their “petition” were made aware of the many facts above. We have tremendous respect for nature and the environment, but not as a farce to justify an illegal land grab. Any tall tree plantings, including the foreign pittosporum hedges on OUR property line adjacent to the alleyway, are problematic for multiple reasons: they were illegally planted, they make this public land appear to be the personal backyard of the McManus’ (massively exacerbated by all off the personal dining furniture, lighting, terracing, etc. installed), and their large height casts shade on our fruit trees which negatively impacts the growth potential of fruit trees and other vegetation on our personal property. Moreover, the drainage concerns cited by the McManus’ are a non-issue with native ground cover proposed to be planted in this area and existing drainage. We walk at least two alleys every day with our puppy, and they have more slope and do not show signs of erosion problems even after many years. We believe this is just another attempt to evade the legal request by the city to remove their unpermitted modifications to the alley that they use as their personal backyard.

Our request is very simple. In light of the many violations of their existing EP, and the egregious expansion of their land grab despite the City’s generosity of allowing them to build and locate a driveway on public land that is not theirs, we support the city’s request that they vacate the alley and return it to public property both in reality and in appearance. They are not victims, they are not being picked on, this is not retribution, they are just being held accountable for 4 October 16, 2023 Item 09
their egregious actions. We value public alleyways for open space for the community, safety, utility infrastructure, and emergency use if needed, not for personal backyards. In summary, we believe the City’s August 17 Encroachment Permit as written maintains the appropriate management and protection of City resources by requiring planting low ground cover in this area, no blocking hedges, and a pathway down the middle of the alley which we support.

Sincerely,
Alana McNulty

1. https://www.haskins.co.uk/carbon-absorption/

2. https://www.audubon.org/field-guide/bird/hooded-oriole Nesting
In courtship, male moves around female, posturing with deep bows and then pointing bill straight up while singing softly. Female may respond with similar posturing. Nest: Often placed in palm or large yucca, sewn to underside of large overhanging leaf; usually 10-50' above 5 October 16, 2023 Item 09
ground, but can be lower. Sometimes placed under banana leaf, in clump of mistletoe or Spanish moss, or suspended from branch of deciduous tree. Nest is a woven hanging pouch of grass and plant fibers, lined with plant down, hair, feathers. Female builds nest, but male may help bring material.
6 October 16, 2023 Item 09
1 Melinda Gould
From: Kelly Welch <[email protected]>
Sent: Sunday, October 15, 2023 11:53 AM
To: City Clerk Mail Box; Tanya Young
Subject: October 16 City Council Item #9
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Dear Council Members
I see no reason not to approve the Encroachment Permit. My husband and I hike all of the streets and paths in Del Mar and this particular one is no exception. The Youngs are friendly and cooperative and cause no problems for those who want to hike this path. They should be given an Encroachment Permit! Thanks,
Kelly and Pat Welch
431 8th Street
1 October 16, 2023 Item 09
1 Melinda Gould
From: Susan Hurd Trembath <[email protected]>
Sent: Sunday, October 15, 2023 1:52 PM
To: City Clerk Mail Box
Subject: red dot letter item 9
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Dear Council Members;
When I first moved here 21 years ago I was asked to chime in on a controversy concerning the public alley next to 919 Klish. I did so, supporting protection of the public alley for hikers, but allowing for harmless encroachments.

Unfortunately, the issue is not resolved after so many years. In my opinion, the City Council at that time kicked the can down the road, reserving the right to make this a 'public path' at some unspecified future time, tempting encroachment by several on that alley, and creating future friction in the neighborhood.

Now it is time for both compromise and clarity. Why not designate the alley a public path, but allow existing unobstructive landscape to remain? Some of Del Mar's most popular public paths have some hardscape and plantings which add to their aesthetic and walkability. From my perspective, the hardscape and plantings along the McManus stretch are quite lovely, open, and don't impede.

In areas without sidewalks, public paths contribute substantially to the charm, safety and enjoyment of Del Mar. (I live right on a much-loved one myself.) I encourage the Council to act decisively to protect paths while finding compromise in neighbor-to-neighbor disputes over old encroachments resulting from previous nebulous decisions and lack of monitoring by the City.

Susan Trembath
837 Klish Way
2 October 16, 2023 Item 09
1 Melinda Gould
From: David Borman <[email protected]>
Sent: Monday, October 16, 2023 7:50 AM
To: City Clerk Mail Box
Subject: Tonight's Agenda Item 9 (EP22-101)
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.

This letter is written in support of the City Manager’s approval of EP22-101.

The issue at hand is not ornithology or horticulture or climate change or the loyalty of the applicant’s community friends.

The issue is the principle of public land open space. Its provenance rests in the County grant over a century ago, our Community Plan of nearly a half-century ago, and a City Council’s resolute affirmation twenty years ago.

Burdened by the twin constraints of an inhospitable terrain and their covenant with the City a quarter century ago, the applicant curated an illicit backyard on public land through a progressive surreptitious colonization of the public alley.

Such continued their disdain for principle and covenant, which they so vigorously displayed with their illicit fireplace twenty years ago. Such brought them a Superior Court fine and a direction by the City Council to demolish the intrusion.

I urge this Council, as the custodian of City property, to affirm the public trust by adopting the City Manager’s approval of EP22-101.

Sent by David Borman
Toujours Ensoleille a San Diego
3 October 16, 2023 Item 09
1 Melinda Gould
From: City Clerk Mail Box
Subject: FW: City Council 10/16/2023 Agenda Item #9 Initial Consideration Appeal Re. EP 22-101
Attachments: Young McManus 919 Klish Way - Paper Alley Chronology.pdf; Young McManus Major Encroachment Permit Findings_2023 10 13.pdf
Importance: High
From: Matthew A. Peterson <[email protected]>
Sent: Monday, October 16, 2023 11:02 AM
To: Sarah Krietor <[email protected]>; City Clerk Mail Box <[email protected]>; Tracy Martinez <[email protected]>; Dan Quirk <[email protected]>; Terry Gaasterland <[email protected]>; Dwight Worden <[email protected]>; David Druker <[email protected]> Cc: Matt Bator <[email protected]>; Karen Brindley <[email protected]>; Tanya Young <[email protected]>; Michael McManus <[email protected]>; 'Richard Bokal' <[email protected]>
Subject: City Council 10/16/2023 Agenda Item #9 Initial Consideration Appeal Re. EP 22-101 Importance: High
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Dear Sarah, Here of my email with attachments to the Mayor, City Council, and staff as a red dot communication. We will also be presenting the PP (link below) to the City Council this afternoon. Can you please confirm receipt and load it in for us?
Thank you, Matt
Dear Mayor Tracy Martinez, and members of the City Council, We represent Tanya Young and Dr. Michael McManus with regard to the above referenced matter.

We hope that you have an opportunity to visit the site, as it is difficult to get a full understanding and perspective without seeing the area in person. 1 October 16, 2023 Item 09
2 As you may or may not know, the City has never maintained or otherwise improved the paper alley. While never traversed by automobiles, it was formally closed to vehicular traffic in 1975. In 1998, the City Park & Recreation Committee sent a letter to City Public Works after it determined that the paper alley was not suitable for a public trail.

As you can see by the attached chronology, this particular situation dates back to the early 1970s when the City issue the first encroachment permit for the adjacent owner, Joe Lancor. To the best of our knowledge, there was no limitation within that approval, and we assert that landscaping and planting could then and still now can occur within the entire paper alley pursuant to that original approval.

Our clients purchased their home in 1997. At that time, significant encroachments ( the driveway, retaining walls, planters trees & bushes) were already installed by previous owners. Those encroachments and a few other features were memorialized and approved by the City pursuant to EP 97-41 and a Covenant was recorded on March 1998.

At about that same time, pursuant to the recommendation of chief City planner, Jim Sandoval our clients filed an application for the paper alley vacation. After three years and a tremendous amount of money spent, the City Council decided not to process the vacation request.

In August 2022, the City sent out a code violation notice to our clients. At that time, our clients believed they had worked out a resolution with the City inspector, but ultimately were required to apply for an encroachment permit.

Because of their previous experience with the Vacation request, they were encouraged to submit a revised plan that could be processed by staff and proposed removal of the hedge and the rose bush wooden planters.

Staff then issued the permit, but required as a permit condition that all vegetation to be removed from the area, effectively denuding the entire site and replacing it with Hydroseed.

At that point, our clients decided that they could no longer in good conscience tear out all of the trees, bushes, vegetation (bird habitat), and instead decided to appeal and reinstate the original application for the major encroachment permit 22-101. 2 October 16, 2023 Item 09
3 While the staff report is not entirely accurate, it is important to note that staff’s draft findings are based upon its recommendation of the entire area be denuded.

Staff then concludes in its findings that removal of all vegetation would somehow be in the best interest of the City. Staff also suggests that the removal would somehow make the area “appear to be more public even though the area cannot even be seen from the street. What can be seen from Klish Way is the tasteful welcome to the public sign that our clients posted!
Obviously, our clients don’t agree with staff’s recommendation or reasoning.

Attached is a draft set of findings for the City Council’s consideration.

Also attached below as a link of our PowerPoint that we will be showing this afternoon. It provides additional information and evidence in support of the appeal and the City’s issuance of the originally applied for Major Encroachment Permit if a de-novo hearing is granted.

We appreciate your consideration.

Sincerely, Matthew A. Peterson
https://docs.google.com/presentation/d/1KMrO_QWg2yf-
_j2d6xsNBUwh_6X1rEcf/edit?usp=sharing&ouid=117396152977945512024&rtpof=true&sd=true Matthew A. Peterson
Peterson & Price, A Professional Corporation
402 W. Broadway, Suite 1815
San Diego, CA 92101-3542
(619) 234-0361
(619) 234-4786 fax
www.petersonprice.com
CONFIDENTIALITY NOTICE: The information contained in this e-mail is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and, as such, is LEGALLY PRIVILEGED & CONFIDENTIAL INFORMATION. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document (and any attachments) in error and that any review, dissemination, distribution or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail and delete 3 October 16, 2023 Item 09
4 and destroy all copies of the communication ( and any attachments). Unauthorized interception, review, use, disclosure or distribution is prohibited and may violate applicable laws including the Electronic Communications Privacy Act. 4 October 16, 2023 Item 09

KLISH WAY CHRONOLOGY
1970 Purchase of lot by architect Joe Lancor
1971 Subdivision of lot (915 and 919 Klish Way) and sale of 915 Klish Way 1972 Completion of construction—919 Klish Way
1973 Joe Lancor receives approval for Encroachment Permit for hardscape and trees (Torrey Pines) to be planted in and along the “paper” alley (adjacent to 919 Klish Way.) 1975 The “paper” alley was closed to vehicular traffic per Resolution 75-29 August 16, 1975.

Ca. 1980 The existing driveway and stone wall were built by the 3rd or 4th owner. (We are the eighth owners). These are the items for which we received an Encroachment Permit 97-41 when we buy the house (EP also allows landscaping.) 1997 We purchase 919 Klish Way. We complete a survey and learn the true location of the “paper” alley. We consult with the Chief City Planner Jim Sandoval and on his advice and recommendation initiate a “paper” alley vacation request. We believed the Lancor EP authorized plantings and trees.
1998 The City Parks and Recreation Committee concludes that the “paper” alley is not suitable for a public path/trail and supports the vacation request. (June 20, 1998 Letter from Parks and Recreation Committee to Public Works)
1999 The City requires us to survey the entire “paper” alley to Amphitheatre. 2000 We secure support for the “paper” alley vacation from the following:
• The City Manager and the Planning Department
• Public Works
• The Fire Department
• SDG&E
• 60 neighboring residents
• Paid $2000 to the City for the vacation application
May 2000 At first hearing (two part process) there was very vocal and adversarial opposition to a vacation by open space advocates. We are not given our opportunity for a hearing to present our request and findings to the City Council. 2000-2003 Creation of a path for “paper” alley access for the public, planting of trees (Pittosporum hedge) along the edge of the “paper” alley to demarcate the “paper” alley.

Creation of gravel area near the top big boulders to control persistent flooding, with less than 12 “ walls to contain the gravel. Consulted with Adam Birnbaum, Chief Planner, who gives verbal approval because of the low height of these walls.

P.1
5 October 16, 2023 Item 09
2006-present We complete three major remodels with full inspections. The City has been here innumerable times and has never mentioned any concerns about encroachments in the “paper” alley.
2007 Letter from Crystal Crawford saying planting OK adjacent to “paper” alley but hardscape would not be OK. (We did no hardscape.)
2013 Planting of roses.
2020 McNultys clear their steep back hillside and build multiple retaining walls, some as high as 5’ or higher. Someone, not Young/McManus (919 Klish Way) files a complaint with the City concerning the McNultys’ unpermitted retaining walls. The City then requires them to dismantle their retaining walls. Subsequently they replace some of the walls with block, put in irrigation pipe on top of the dirt, and plant fruit trees. 2022 On August 29, we receive a Code Violation notice from Patty Malik listing the hedge and other items in violation.

Rich Bokal our architect and I have a meeting on site with Patty Malik and mutally agree that it would settle the complaint if we topped the trees. We arrange for an arborist and tree service, but before this can be done we are informed that it is not sufficient and we would have to take out more things.
2022 November 8. With Rich Bokal, we file for two new Encroachment Permits, short-term (because of our construction) and long-term (to cover the landscaping and other encroachments.) $2435 fee.
2023 Matt Bator indicates the EP application requires the City Council which would be set for March requesting approval of “encroachments.” 2023 In February, in fear because of our previous experience at the City Council in 2000, we decide not to go to City Council and ask Rich Bokal to find out what would be required to get administrative Minor Encroachment approval. We were then required to produce a landscape plan ($1600.)
2023 April, Landscape plan rejected because of complainant objection. 2023 August 17 . Conditional Approval of Encroachment Permit (EP) 22-101 requiring that ALL plantings including trees, ALL other nearby vegetation, the gravel catchbasin, and the roses be removed. The City sends this notice to our neighborhood in our name without our approval.
2023 August. We hire Matt Peterson as our attorney. We file an appeal ($1600) and reinstate our original Major Encroachment Permit request, so that ALL trees and vegetation may remain as they are now.

P.2
6 October 16, 2023 Item 09
1 Young McManus Long Term Major Encroachment Permit Findings 1) The proposed Encroachment will not endanger the public health, safety, or welfare, or the surrounding property;
The Right of Way (“paper alley”) between Klish Way and Amphitheater Dr. has never been used, maintained, or improved by the City. Before the invasive Arundo, trash, and debris were cleared out, the site constantly flooded causing significant impact not only to 919 Klish Way but also to the public street and public storm drain system. The proposed encroachment involving the retention of the vegetation, mature trees, low sight walls, gravel, a public path, and drainage improvements near the top will not endanger the public health, safety, welfare, or the surrounding property. In fact, the improvements have enhanced public access; health, safety, and welfare. Therefore, the proposed encroachments will not endanger the public health, safety, or welfare, or the surrounding property. 2) The proposed Encroachment will not unreasonably interfere with the intended use of a City Right-of-Way or Easement;
The intended use of the original alley dedication was for vehicular public utilities, and perhaps pedestrian use. However, the paper alley between Klish Way 7 October 16, 2023 Item 09
2 and Amphitheater Dr. has never been used, maintained, or improved by the City. In 1973, the previous property owner (Lancor) obtained an Encroachment Permit from the City Council for hardscape and landscaping, including Torrey Pines trees to be planted within the alley. There did not appear to be any limitation on the location of trees or vegetation. In 1975, the paper alley was closed to vehicular traffic (See Resolution 78-29 adopted August 18th, 1975). In the early 1980’s, the driveway and other site walls were installed by a previous owner. In 1997, the City issued another Encroachment Permit No. 97-41 to Young/McManus, which authorized the previously installed existing concrete driveway, retaining walls, plantings, trees, and other improvements and enhancements to the area. There is nothing that was done in the past by previous owners, and nothing that is there now which prohibits the public from enjoying the paper alley. In fact, the applicants/owners have posted a sign adjacent to Klish Way inviting the public. Because the City has no present or future use of the paper alley, the encroachment cannot unreasonably interfere with its originally intended use. Therefore, the proposed encroachments will not unreasonably interfere with the intended use of a City Right-of-Way or Easement. 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 proposed encroachments, including a public path, vegetation, mature trees, low sight walls, a gravel detention area, and drainage improvements would not have any adverse impact on the welfare of the community or the community’s 8 October 16, 2023 Item 09
3 aesthetics. First, the proposed encroachments cannot even be seen from either public street, Klish Way or Amphitheater Dr. Second, the improvements are actually beneficial to the welfare of the community and dramatically improve the access to and the appearance of the area, which has never been maintained or otherwise improved by the City. To suggest that the landscaping and improvements have “detracted from the appearance of the natural corridor through the hillside and neighborhood” is a misstatement of fact. Before these improvements were made, the area was overrun with 15 ft tall invasive Arundo, trash, debris, uncontrolled runoff, drainage, and erosion. The vegetation and the trees help improve air quality and provide a lovely nesting area for local and seasonal birds. Therefore, the proposed encroachments will not have an adverse impact on the welfare of the community or on the community’s appearance or aesthetics. 4) The proposed Encroachment will not cause an unnecessary change in the character of the community;
The proposed encroachments have enhanced the quality and character of the community. The area can now be enjoyed by the neighbors and surrounding community for generations. The public is welcomed with signage and the area is nicely maintained for the public to enjoy a quiet moment in nature. Because the back portion of this paper alley cannot be seen from the public streets, there has been no change to the character of the community. Therefore, the proposed 9 October 16, 2023 Item 09
4 Encroachment will not cause an unnecessary change in the character of the community.
5) The proposed Encroachment will not be a detriment to the interests of the general public;
The paper alley between Klish Way and Amphitheater Dr. has never been used, maintained, or improved by the City. The encroachments consist of a path, vegetation, mature trees, a rose garden, low sight walls, a gravel detention area, and drainage improvements towards the top. None of the encroachments are detrimental to the interests of the general public. However, removing all of the vegetation and improvements would be unsightly and not be in the best interest of the general public. The Park and Rec Committee already determined that this area is not appropriate for a trail or public access (See June 20, 1998 Park and Recreation Committee Letter to Public Works). However, the public is invited and has direct access with this Encroachment Permit to experience this beautiful bird sanctuary with no public liability, cost, or exposure. The proposed Encroachment will not be a detriment to the interests of the general public.
6) The proposed Encroachment will not convert significant areas of public property to private use.

The underlying fee ownership of the paper alley is with the adjacent property owner(s), therefore the paper alley is not “public” property. The City does have a 10 October 16, 2023 Item 09
5 paper right of way that it has never utilized, maintained, or improved. The trees, landscaping, public path, rose garden, short sight walls, gravel detention area, and drainage improvements have not converted significant areas of public property to private use. In 1973, the City issued an Encroachment Permit to the previous owner (Lancor). In 1975, the alley was officially closed. In the early 1980’s, the previous owners installed the driveway and site walls. In 1997, the City issued yet another Encroachment Permit No. 97-41 (Young/McManus), which authorized the previously existing concrete driveway, retaining walls, plantings, trees, and other improvements and enhancements to the area. There is nothing that was done in the past, and nothing that is there now which prohibits the public from walking in and enjoying the area. In fact, the applicants/owners have posted a sign adjacent to Klish Way inviting the public. Again, the back area of the paper alley cannot even be seen from either Klish Way or Amphitheater Dr. Therefore, there is no appearance of privatization from the street that discourages the public. Requiring the removal of all the vegetation, the habitat for birds, and to denude this beautiful setting that has been maintained for public use would not reverse or reestablish anything as suggested by City staff. The original condition of the paper alley, which was not improved or maintained by the City included15 ft high invasive Arundo, trash, debris, erosion, and uncontrolled runoff. Therefore, the proposed encroachment will not convert significant areas of public property to private use.
11 October 16, 2023 Item 09
1 Melinda Gould
From: Jack Oatman <[email protected]>
Sent: Monday, October 16, 2023 11:16 AM
To: City Clerk Mail Box
Cc: [email protected]
Subject: City Council Meeting; 10/16/23; Item #9
Attachments: scan20231016110323.pdf
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.

Aached is evidence of our support for maintaining/allowing the McManus/Young hedgerow.

Jack & Judy Oatman
698 Orchid Lane
Del Mar, CA
(corner of Klish & Orchid Lane)
1 October 16, 2023 Item 09
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1 Melinda Gould
From: Kseniia Izgarskaia
Sent: Monday, October 16, 2023 11:27 AM
To: City Clerk Mail Box
Cc: Tanya Young
Subject: Red Dot
Attachments: CC October 16_2023_Item#9.pdf
Follow Up Flag: Follow up
Flag Status: Completed
Hi Melinda,
Please process the aached as a red dot from Tanya Young. Tanya, if anything is missing, please let us know or send as a separate aachment.

Thank you,
Kseniia
Kseniia Izgarskaia, CPHR, CPPB | Associate Management Analyst City of Del Mar | Administrave Services Department
1050 Camino del Mar, Del Mar, CA 92014
858-375-9560 | [email protected]
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1 Melinda Gould
From: City Clerk Mail Box
Subject: FW: Red dot item #10 October 10th City Council Meeting From: deftos <[email protected]>
Sent: Sunday, October 15, 2023 3:38 PM
To: City Clerk Mail Box <[email protected]>
Subject: Fwd: Red dot item #10 October 10th City Council Meeting CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Del Mar City Clerk,
Please excuse my error in the title of this red dot. It is obviously intended for the October 16th City Council Hearing Thanks,
Michael
---------- Forwarded message ---------
From: deftos <[email protected]>
Date: Sun, Oct 15, 2023 at 3:31 PM
Subject: Red dot item #10 October 10th City Council Meeting To: Tracy Martinez <[email protected]>, Terry Gaasterland <[email protected]>, Dan Quirk <[email protected]>, Dwight Worden <[email protected]>, David Druker <[email protected]>, City Clerk Del Mar <[email protected]>
Cc: <[email protected]>
Del Mar City Council,
The Accessory Dwelling Unit Amnesty Program seems uncontroversial, legalizing illegal ADUs and requiring these to be moderate and low-income affordable dwelling units. One issue that does arise is the issuance of a CDP permit ex-post-facto for these ADUs to certify compliance with the City's LCP and, by extension, the Coastal Act. A question that has recently arisen is how to evaluate illegal development ex-post-facto for compliance with our certified LCP, which is necessary for the issuance of the CDP, including in the Accessory Dwelling Unit Amnesty Program.

Recently, City staff asserted in a Planning Commission hearing that “per applicable law,” the Coastal Act should be applied ex-post-facto to the current conditions established by the illegal development rather than as if the illegal development had not yet occurred. In contrast, in 1993, City staff asserted that the "development had not yet occurred" standard should be applied. This also seems to be the position of the Coastal Commission:
https://documents.coastal.ca.gov/reports/2016/12/th14a-12-2016.pdf 1 October 16, 2023 Item 10
2 Further, in cases such as this where the Commission is considering issuing a permit for a project that has already been substantially constructed without the benefit of a required coastal development permit, it analyzes the project’s consistency with Chapter 3 as if no development has occurred yet.
https://www.coastal.ca.gov/fire/restore.html
Early in 1990, the CCC revised the procedure for after-the-fact permits. The issuance of an after-the-fact permit allows a property owner to keep the unpermitted development on site, and resolve the violation. This process requires the property owner to apply for the development as-built; however, so as not to bias, in either direction, the CCC's final decision it is reviewed by the staff and the CCC as if it has not yet occurred.

Given these contradictory standards from the City, and given that this issue is now before the City Council and ripe for discussion in the context of considering the Accessory Dwelling Unit Amnesty Program, it seems reasonable to request a definitive answer.

Does the City apply the “current conditions” standard or the “as not yet built” standard when determining ex-post-facto whether development that occurs illegally without a Coastal Development Permit is consistent with its LCP?
Can this be explicitly stated in the Accessory Dwelling Unit Amnesty Program Ordinance? Thanks,
Michael Deftos
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Del Mar City CouncilOctober 16, 2023

Del Mar City Council
October 16, 2023