Del Mar City Council Meeting Agenda
Del Mar Town Hall
1050 Camino del Mar, Del Mar, California
January 8, 2024 City Council Meeting
INFORMATION RECEIVED
AFTER THE COUNCIL AGENDA
WAS DISTRIBUTED
(“Red Dots”)
1 Melinda Gould
From: Tanya Young <[email protected]>
Sent: Friday, January 5, 2024 4:24 PM
To: City Clerk Mail Box
Subject: City Council January 8, 2024, Item #9
Attachments: Letter of Support_CC_January8_2024_Item #9.pdf; Signatures.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.
Dear Melinda,
Here is the Letter of Support for our City Council Hearing on Monday, January 8, 2024, Item #9. The list of 59 signers is attached. Please include in the packets for the City Council Hearing on Jan. 8.
Many thanks, Melinda.
All the best,
Tanya Young
TANYA YOUNG STUDIO
[email protected]
858.382.3636
http://tanyayoungart.com
www.facebook.com/tanyayoungscienceillustration
instagram: tanya_young_studio
twitter: @tanyayoungart
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Mary Friestedt
328 Bellaire St.
Jeffrey Friestedt
328 Bellaire St.
Carol Kerridge
334 El Amigo
Karen Searcy
701 Crest Road
Rick Timms
825 Klish Way
Terri Timms
825 Klish Way
Barbara B. Kubarych
4652 Sun Valley Rd.
Kenneth G. Kubarych
4652 Sun Valley Rd.
Linda Addison
1175 Solana Dr.
Paul Addison
1175 Solana Dr.
Kelly Welch
431 8th St.
Pat Welch
431 8th St.
Gale Darling
217 24th St.
Phyllis Mirsky
605 Hoska Dr.
Ed Mirsky
605 Hoska Dr.
Anne Checkoway
428 Van Dyke Ave.
Harvey Checkoway
428 Van Dyke Ave.
Gale Bakker
335 Amatista
Tanya Schneiderman
709 Hoska
James Kennedy
707 Hoska
Ann Feeney
524 Rimini Rd.
Alice W. Brown
484 Avenida Primavera
Janice Taylor
755 Hoska
Shannon Taylor
755 Hoska
Jill Ellis
442 8th St.
Judd Westover
442 8th St.
Susan Trembath
837 Klish Way
Arline Paa
612 8th St.
Lois Higgins
767 Hoska
Paulette Horner
749 Hoska Lane
Keith Laband
749 Hoska Lane
Lindsey Lippert
757 Hoska Dr.
Greg Lippert
757 Hoska Dr.
Andy Cook
364 Bellaire
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Jan Gad
14959 Rancho Antiguo
Howard Gad
14959 Rancho Antiguo
Sheila Friedlander
1720 Zapo St.
Martin Friedlander
1720 Zapo St.
Annie Herlik
318 La Amatista
Roger Bates
318 La Amatista
Randee Warren
227 27th St.
Glenn Warren
227 27th St.
Nancy Kane
444 Pine Needles
Chris Kane
444 Pine Needles
Christopher Kane (Jr.)
444 Pine Needles
Mitchell Kronenberg
2232 Place Monaco
Hilde Cheroutre
2232 Place Monaco
David Ralph
B342 1/2 9th St.
Nick Frost
1022 Crest Rd.
Francine Frost
1022 Crest Rd.
Judy Oatman
698 Orchid Lane
Jack Oatman
698 Orchid Lane
Becky Dembitsky
1615 Luneta Drive
Walt Dembitsky
1615 Luneta Drive
Judy Schuckit
785 Kalamath
Marc Schuckit
785 Kalamath
Leslie Cady
754 Hoska
Candace Kohl
Torrey Pines Terrace
Bettina Experton
Tewa
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1 Melinda Gould
From: Tanya Young <[email protected]>
Sent: Friday, January 5, 2024 5:23 PM
To: City Clerk Mail Box
Subject: Petition PDF file (7 pages) and page of signatures attached—City Council_January 8, 2024_Item #9
Attachments: Eco_Letter_Petition_CC_January8_2024_Item #9 copy.pdf; Signers to the Ecological Letter Petition.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.
Hi Melinda,
Hopefully this works. Please attach the following documents to the packets for City Council Item #9.
Many thanks for your helpful assistance.
All the best,
Tanya Young
TANYA YOUNG STUDIO
[email protected]
858.382.3636
http://tanyayoungart.com
www.facebook.com/tanyayoungscienceillustration
instagram: tanya_young_studio
twitter: @tanyayoungart
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SIGNERS TO THE “ECOLOGICAL LETTER” PETITION SUBMITTED TO THE
PLANNING DEPARTMENT, THE DEL MAR CITY COUNCIL, THE DEL MAR DESIGN REVIEW BOARD ON AUGUST 1, 2023
Mary Friestedt Hilde Cheroutre
Bellaire St. Place Monaco
S. Gale Bakker Jill Ellis
La Amatista 8th St.
Alice Brown Carol Kerridge
Avenida Primavera El Amigo
Richard Timms Susan Trembath
Klish Way Klish Way
Terri Timms Judd Westover
Klish Way 8th St.
Tanya Schneiderman
Hoska Dr.
Jeffrey Friestedt
Bellaire St.
Janice Taylor
Hoska Dr.
Shannon Taylor
Hoska Dr.
Barbara Kubarych
Sun Valley
Kenneth Kubarych
Sun Valley
Mitchell Kronenberg
Place Monaco
9 January 8, 2024 Item 09
1 Melinda Gould
From: Matthew A. Peterson <[email protected]>
Sent: Friday, January 5, 2024 4:56 PM
To: Sarah Krietor; City Clerk Mail Box; David Druker; Tracy Martinez; Dan Quirk; Terry Gaasterland; Dwight Worden
Cc: Matt Bator; Karen Brindley; Tanya Young; Michael McManus; 'Richard Bokal' Subject: City Council January 8th, 2024 Agenda Item 9 Major Encroachment Permit 23-094 919 Klish Way
Attachments: Ltr to Mayor Druker and Members of the City Council with copy of Findings EP 23-094 City Council Hearing 1-8-2024.pdf
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 attached letter to the Mayor, City Council, and staff as a red dot communication. We will also be presenting the PP which we will get to you Monday morning.
Thank you, Matt
Dear Honorable Mayor Druker and respected members of the City Council, We represent Tanya Young and Dr. Michael McManus with regard to the above referenced matter.
Please see attached our letter to you dated today with attached Findings 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.
As you may or may not know, the City has never maintained or otherwise improved this paper alley.
This particular situation dates back to the early 1970s when the City issued the first encroachment permit to the adjacent owner, Joe Lancor. To the best of our knowledge, there was no limitation within that approval, and we assert that 1 January 8, 2024 Item 09
2 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.
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 requiring that the entire area be hydroseeded.
At that point, our clients decided that they could not, in good conscience, tear out all of the trees, bushes, vegetation (bird habitat). Instead our clients have decided to pursue a completely new application EP 23-094.
We appreciate the City Council’s consideration of this application.
Sincerely, Matthew A. Peterson
Matthew A. Peterson
Peterson & Price, A Professional Corporation
402 W. Broadway, Suite 1815
San Diego, CA 92101-3576
(619) 234-0361
(619) 234-4786 fax
2 January 8, 2024 Item 09
3 www.petersonprice.com
We have moved. Please note our new suite number.
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 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. 3 January 8, 2024 Item 09
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1 Melinda Gould
From: Nicholas Frost <[email protected]>
Sent: Friday, January 5, 2024 6:08 PM
To: City Clerk Mail Box
Subject: Red Dot Letter re agenda item # 9 on January 8, 2024 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 Del Mar City Council members,,
We support Tanya Young and Michael McManus in their application for an encroachment permit. This encroachment permit would allow the maintainence of the trees and vegetation in the “paper alley” adjacent to their home at 919 Klish Way. They have worked to enhance the beauty of their surroundings and to mitigate the impact of flooding and erosion. The enhancements have been a benefit to the ecosystem and to all who visit the area.
To force the removal of these trees and vegetation and enhancements makes no sense.
We strongly support Tanya and Michael’s application for the encroachment permit.
Sincerely,
Nick and Fran Frost
1022 Crest Road
Del Mar, CA 92014
1 January 8, 2024 Item 09
1 Melinda Gould
From: Jan Gad <[email protected]>
Sent: Saturday, January 6, 2024 6:06 PM
To: City Clerk Mail Box
Subject: Red dot for 1/8- Tanya Young's Encroachment Permit 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 the Del Mar City Council,
>
> We would like to support Michael McManus and Tanya Young’s application for an Encroachment Permit to keep on maintaining the beautiful alley north of their home on Klish Way. The beneficial planting and public access they have created is beyond incredible. > They should be publicly thanked for adding so much to the community. >
> Thank you, Jan and Howard Gad
2 January 8, 2024 Item 09
Tanya Young and Michael McManus
919 Klish Way
Del Mar, CA 92014
Re: City Council Hearing
January 8, 2024
Agenda Item #9, EP 23-094
January 6, 2024
Dear Mayor Druker and Respected Council Members,
We are writing to address the Staff Report on EP 23-094 and statements made by the complainants at the October City Council hearing. This hearing was the first opportunity we had to hear our neighbors’ reasons for the complaint as they rebuffed attempts from both of us to have a conversation and come to a compromise before things got to this point of taking up the time and energy of Staff and Council. We believe the reason for this complaint is revenge, for something we did not do. Someone reported our neighbors to the City but it was not us.
We are deeply disturbed by the portrayal of us as serial violators. From the time we bought the house we sought advice from Staff. Our attorney Matt Peterson has described in his letter to you what we went through to no avail in our three year attempt to vacate—on Staff’s advice— the paper alley. We have done four major remodels now, always with permits and inspections. Our house was in critically poor repair when we bought it and we have continually improved it in a labor of love.
In the October hearing, our neighbors stated that we did not permit them to use the paper alley for their (unpermitted) construction. We want you to know that earlier we did agree to facilitate them bringing plants and tree branches onto and off their property and down our driveway. Because we park our cars in tandem there (one is EV plug-in) we requested advance notice when the workers were coming so we could move our cars—at a time not when we were working. This advance notice was not provided. The crew was disrespectful and destructive. They left a mess for us to clean up. They hacked the branches of trees one of which died. We removed this dead tree and there is now a space through which our neighbors can more easily have access from their property to the paper alley. For the reasons cited above, we told our neighbors that they needed a permit from the City to use the alley for temporary construction (the same as the one we were required to get for our remodel.) Over the 27 years we have lived here we have managed floods and mudslides in the paper alley at our own expense, without ever asking for financial or custodial help from the City. You will see photos of some of this flooding in the Power Point we will present on Monday night at the hearing.
All the adjoiners on the Klish/Amphitheatre paper alley (7) were requested by the City to remove the Arundo donax; to my knowledge we were the only ones to comply. We did it 3 January 8, 2024 Item 09
because it was invasive, nonnative and a fire hazard. It took 3 or 4 months of hard work to dig it all out. During these months we rented a big dumpster and removed large amounts of invasive vegetation.
We have pride in our home and we want to live next to an asthetically beautiful and visually harmonious public paper alley. It is good for everyone.
We take issue with the photos which staff provided in the report for this meeting. These photos are misleading. At Staff’s request the terraces were removed quite some time ago and will not be replaced. The deck furniture is usually on our private property and was placed there temporarily during our major construction which began in August of 2022. We do not have many flat areas on our lot, but the furniture is now fully on our property. The Staff photo is misleading.
The gravel area was verbally permitted by Planning Staff in the late 1990s. We were told we did not need a permit because the height of the surround is less than 12”. This detention area is effective in trapping flood water and does not impede walking.
If you have hiked the rest of the paper alley up to Amphitheatre, it is hard to understand why we have been singled out, particularly as we have always, from moving in in 1997, provided a path as required by our 1997 EP.
In summary, we want to live in mutually respectful peace with our neighbors. If granted the EP, we will continue to maintain the paper alley in the state in which it is now.
If the EP is granted, we will resume our application for our property to become a Registered Backyard Habitat from the National Wildlife Foundation. There are a few of these in Del Mar already. These registered habitats are assets to our ecology and a great benefit to our town.
We are dedicated nature lovers and appreciators and we help Del Mar in every way we can, financially and with our time and energy. Please approve EP 23-094.
All our best to you all,
Tanya Young and Michael McManus
4 January 8, 2024 Item 09
1 Melinda Gould
From: Ann Feeney <[email protected]>
Sent: Sunday, January 7, 2024 4:04 PM
To: City Clerk Mail Box
Subject: Red dot for 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.
I am writing in support of Tanya Young and Michael McManus’ application for an encroachment permit. They already have an encroachment permit, granted when they moved in in 1997, for their driveway and the low stone walls adjacent to the driveway. The region for which they want a permit is tucked in between the end of the driveway and an impassible path up the hill. They have beautified this area with plantings, which mitigates potential flooding and erosion from the adjacent very steep hillside. The trees planted here 23 years ago sequester carbon and beautify the area. This small area is not in anyone’s view corridor. What would it serve Del Mar to have them rip out the beautiful plantings that they have there, that no one can see except for Tanya and Michael? Nothing! Please approve this encroachment permit.
Thank you
Ann Feeney
524 Rimini Rd.
5 January 8, 2024 Item 09
1 Melinda Gould
From: Kerridge, Carol <[email protected]>
Sent: Sunday, January 7, 2024 5:22 PM
To: City Clerk Mail Box
Subject: Red Dot Item #9 Encroachment Permit 23-094
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 Druker and City Council Members,
I'm writing to once again express my views on this particular request for an Encroachment Permit. There are 3 issues that I would like to address that are important to me.
1. The western side-yard setback of this property is so very irregular that at one point the house was built just inches away. To my knowledge, the owners did not realize this when they purchased their home 27 years ago...and if I remember correctly, the previous owners parked their cars on what is now called a "paper alley" with no awareness or concern from the City or from the neighbors. I remember these issues due to the fact that I was a Planning Commission member at the time when a previous issue regarding this property was discussed.
2. The plantings that neighbors are requesting to be removed are established and seem to do no harm to the "paper alley". In this section they in no way obstruct a person to hike through the alley if they so wish. This alley has not been maintained by the City and actually, would be almost impossible for someone to walk through to the proximal origin which is located up the hill on Amphitheatre Dr. The current owners have cleaned out the brush, trash, and dead plants in this area requested in the EP and replaced them with noninvasive plants which they tended and maintained...all chosen to enhance the environmental biodiversity of the area. Some of the plants are established now and will hopefully help keep the barren slope to the immediate west of the alley section in question from floods, mudslides, and unwanted runoff to the street. I sure wish that more of our Del Mar alleys would be that well maintained.
3. As we are strongly encouraged by the Fire Marshall to remove dead brush and waste near our homes and alley ways, this seems particularly important in this situation as we are warned of the increase of mega fires in our region. As the owners have reduced the fire hazard in this section of the alley to protect their home, their neighbors benefit also. It seems counterintuitive to me, to remove healthy established plants that have so many important protective functions for the owners' home, adjoining homes and neighborhood.
6 January 8, 2024 Item 09
2 In closing, we perhaps should think more about what we can do to make our alleys and canyons less flammable, perhaps the Del Mar Garden Club might help, but in making changes such as these, we need to honor our City regulations at the time, and help by making positive suggestions for change if necessary.
Carol Kerridge
El Amigo Rd
5. 7 January 8, 2024 Item 09
RED DOT LETTER OPPOSING EP 23-094
There are many reasons EP 23-094 should not be approved. Here are several of them:
LEGAL
• City council policy 110 specifically prohibits such plantings as they clearly enclose the alley and create a backyard out of the public alley. • DMCC section 23.28.070 (C)(6) also prohibits such improvements (“The proposed Encroachment will not convert significant areas of public property to private use”).
• DMCC section 23.28.070 (C)(2) also prohibits such improvements (“The proposed Encroachment will not unreasonably interfere with the intended use of a City Right-of-Way or Easement”).
• City planning staff – who are the subject matter experts – and who we pay with our tax dollars for their expertise, time and energy on these matters – has requested removal of the illegal plantings and has recommended rejecting this EP request.
Although these three legal factors alone should be sufficient, I offer the following additional reasons to reject this EP.
ETHICAL
• The huge hedge detrimentally impacts our back yard. We are planting an orchard on our slope – we have planted 11 fruit trees and 6 berry bushes in the past 18 months, with plans for many more. The Pittosporum trees planted by the applicants in the right-of-way against our property line shade our property, hang over our property and are so overgrown they even prevent us from walking on our own property line.
• The huge hedge encloses the back of our property, significantly reducing our open space view, air and light in this section of our yard. • Approval would reward breaking laws and asking forgiveness after the fact. 8 January 8, 2024 Item 09
• The applicant has a history of ignoring code and neighbor considerations as evidenced by the previous fireplace built in this same alley – which the city required be removed. The recurrence of these un-permitted changes should not be rewarded.
• Approval would show preference and favoritism to the applicants over us and other property owners with lots adjacent to the right-of-way. • It is rude and un-neighborly to plant a huge hedge on someone else’s property line, and we couldn’t even put a fence on our own property line if these trees remain.
• The applicants already have an EP covering a big 2,000 square foot Southerly portion of the alley. Isn’t that enough? As homeowners across the alley, we should have every bit as much right to use this alley property as the applicants do, without further clouds on usage and on title. At a minimum, the alley should be split down the middle and granted to our respective properties through the vacation process if the city isn’t going to retain complete control. • If council doesn’t stay consistent and follow regulations - and uses subjective interpretations - then you are inviting similar behavior from other property owners adjacent to an alley throughout the city, who want to expand their own back yard. This would set a very dangerous precedent.
• The plantings are inconsiderate and selfish. We were never consulted about the huge row of trees along our property line. Rather, it was rubbed in our face when this spitescape was completed three years ago and the applicant said “you’re too late – we’re done”.
• We have spent hundreds of hours and thousands of dollars in legal fees fighting this and the city has spent countless resources - all to fight something that is clearly prohibited in the code. Council should be consistent and follow staff’s recommendation to avoid these expenditures which will only increase by all parties if this EP is not denied.
• Any comments that “the public is not impacted” are patently absurd as we are in fact members of the public and we are impacted significantly, as is anyone else who might otherwise use the right-of-way.
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• Granting an EP with maintenance will only bolster the applicant’s bold takeover of the alley such that they treat it as their own back yard. • It’s a lie to pretend this is anything but a private land grab. This is not a “park” or a “sanctuary” or any other contrived name the applicants have conjured up in an attempt to expand their backyard, pure and simple. These improvements physically and psychologically create a private space which is inconsistent with the standards for an EP.
• Any claims of “de-nuding” the alley should fall on deaf ears after the applicants themselves have created large areas void of vegetation including a seating area of DG, another seating area of gravel, and of course the large concrete driveway included in the original EP. Furthermore, this argument presents a false dilemma, as bare dirt is not the only alternative to the applicants’ existing encroachments.
Landscaping can be done in a way that is attractive and prevents erosion of the soil while also being consistent with use of the alley as a public right-of-way.
LOGISTICAL
• If an EP was granted it would be more difficult and complicated for the city in the future should they decide to vacate the right-of-way for the benefit of everyone living along the alley (by splitting it down the middle for the benefit of all of the property owners rather than just one).
• If the EP was granted it would be problematic for the city to underground existing power lines in the right-of-way according to the city’s policy to underground all utilities.
• If the EP was granted the height, width and appearance of the trees would be a constant source of acrimony with neighbors.
• Most of our alleys in the city are maintained without the issuance of an EP to adjacent property owners – this should not be any different in this case. Using maintenance as a reason for an EP does not make sense.
In closing, please ask yourself how you would feel if someone planted a 100-foot long, 40-foot tall hedge on your property line without consulting you – and in fact rubbing it in your face. Do you really think you’d want the rules bent so that this could remain – even over your staunch objections and specific regulations to the 10 January 8, 2024 Item 09
contrary? I don’t believe a single person would! Please don’t apply a double standard just because this isn’t your property – yours might be next… Even if you discount one or a handful of these objections, the overwhelming body of evidence still suggests the city staff’s recommendation to reject the EP is the correct course to take.
Thank you,
John McNulty Alana McNulty
11 January 8, 2024 Item 09
1 Melinda Gould
From: Camilla Rang <[email protected]>
Sent: Sunday, January 7, 2024 6:23 PM
To: City Clerk Mail Box
Subject: Support for Item 9, City Council meeting 01/08/2024 Follow Up Flag: Follow up
Flag Status: Flagged
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.
Dear City Council,
I was made aware of the application to "encroach" a Public Right of Way on Klish Way / Crest Road by a thread started on NextDoor by John McNulty. My first reaction was of course negative since it sounded like neighbors abutting to the Public Right of Way were trying to overtake the area, so I decided to look into it further.
I realized very soon that this should never even had to be called "encroach". It looks like the neighbors, of one reason or another, have been forced to apply for permission to continue looking after this Public Right of Way, or "paper alley", just as it seems they have been doing for decades. The area is cozy and natural and there is a clear sign that the public is allowed. Lots of birds and natural vegetation.
I support the permit for the "encroachment" for the neighbors to continue making the area welcoming both for people and our four footed and winged fellow inhabitants.
Sincerely,
Camilla Rang
Del Mar
12 January 8, 2024 Item 09
AANNESTAD ANDELIN& CORN LLP
160 CHESTERFIELD DRIVE SUITE 201
CARDIFF-BY-THE-SEA CALIFORNIA 92007
www.aac.law (760) 944-9006
Coastal Property Rights, Land Use & Litigation
January 8, 2024
VIA EMAIL
Del Mar City Council
c/o Sarah Krietor, City Clerk
1050 Camino del Mar
Del Mar, California 92014
[email protected]
Re: City Council Agenda Item No. 9, Encroachment Permit EP23-094 Dear Mayor Druker, Deputy Mayor Gaasterland, and Honorable City Councilmembers:
I represent John and Alana McNulty, owners of 1035 Klish Way, one of the properties adjacent to the city right-of-way that is the subject of the encroachment permit requested by the applicants Tanya Young and Michael McManus. For the reasons stated below, we support staff’s recommendation to deny the encroachment permit.
As an initial matter, it is important not to get distracted by the appeals to emotion that the applicants have employed to try to sway you. For example, some of the applicants’ supporters have argued that the trees planted illegally by the applicants should remain because they sequester carbon. That is completely irrelevant to the standard set forth by the Del Mar Municipal Code and City Council Policy 110, discussed further below.
The applicants also argue the encroachments are attractive, according to their subjective view. The encroachments certainly are not attractive from the neighbors’ point of view, especially the hedgelike row of trees and bushes that block their views and even encroach beyond the city’s right-ofway and onto my clients’ lot. In any event, the purported aesthetic appeal of the encroachments does not overcome the applicants’ utter failure to meet the legal standard for approval of encroachments.
The applicants argue that requiring them to remove the encroachments would “denude” the area and result in increased erosion. This not only fails to overcome the inadequacy of their application, but it also presents a false dilemma: bare dirt is not the only alternative to these encroachments.
The area could be planted with ground cover and other, less intrusive landscaping that is attractive and holds the soil without interfering with the public’s ability to use the right-of-way and without blocking neighbors’ air, light, and views. This has been done in many other public rights-of-way in the city, and there is no reason it cannot be done here. 1 January 8, 2024 Item 09
Del Mar City Council
January 8, 2024
2 The applicants’ attorney suggests that the normal rules for encroachments should not apply because this right-of-way is not owned by the city in fee simple. But regardless of the form of ownership, and despite the repeated use of the legally meaningless term “paper alley,” he does not dispute that this is a city right-of-way. The rules are the same for all rights-of-way which the city holds in stewardship for the public, regardless of whether the city holds them in the form of fee simple title, an easement, or a public dedication. As defined in the Municipal Code, “City Rightof-Way or Easement shall mean any real property interest granted to the City for roadways, pathways, open space or conservation, or for the installation or maintenance of utilities.” (Del Mar Mun. Code, § 23.28.020.A, italics added.)
The applicants simply cannot meet the legal standard for granting an encroachment permit. The Del Mar Municipal Code sets forth six findings, all of which must be made before the city can consider granting an encroachment permit to a private citizen. The applicants fail at least five of the six required findings, as explained below.
Unreasonable interference
To grant an encroachment permit, the decisionmaker must find that “[t]he proposed Encroachment will not unreasonably interfere with the intended use of a City Right-of-Way or Easement.” (Del Mar Mun. Code, § 23.28.070.C.2.) The intended uses of a right-of-way include “roadways,” “pathways,” and “open space.” (Id., § 23.28.020.A.) The applicants’ encroachments interfere with such uses because they physically and psychologically block the passage of both vehicles and pedestrians by placing obstacles across the entire width of the right-of-way, as well as locating a dense row of trees and bushes to act as a hedge along the westerly boundary of the right-of-way.
The tiny, barely visible sign erected by the applicants purportedly to invite the public to use the right-of-way does not change the nature of the encroachments. Indeed, the sign is a tacit acknowledgement that the encroachments do interfere with public access, whether physically or psychologically, else why would a sign be needed?
The applicants seem to think that they can do almost anything they want in the right-of-way because it is not currently being used by the public for pedestrian access, but that argument is circular. The right-of-way is not being used at least in part because the applicants and their predecessors have been blocking the public, both physically and psychologically, from using it. It is practically impossible for a pedestrian to pass through the hedge-like row of trees and bushes along the westerly boundary or the thick grove of bamboo in the middle of the right-of-way. The applicants’ statement that the city has formally closed the right-of-way to vehicular traffic is factually incorrect, as pointed out in the staff report, and ignores the applicants’ use of the rightof-way for their own vehicles.
Adverse impact
A proposed encroachment must “not have an adverse impact on the welfare of the community or on the community’s appearance or aesthetics.” (Del Mar Mun. Code, § 23.28.070.C.3.) The applicants’ encroachments have an adverse impact because, as discussed above, they physically 2 January 8, 2024 Item 09
Del Mar City Council
January 8, 2024
3 and psychologically block the use of the right-of-way by the neighbors and the public at large. In addition, the encroachments, especially the overgrown, hedge-like row of trees and bushes along the westerly edge of the right-of-way, have an adverse impact on neighbors’ access to light, air, and views.
Unnecessary change
A proposed encroachment must “not cause an unnecessary change in the character of the community.” (Del Mar Mun. Code, § 23.28.070.C.4.) The applicants’ encroachments cause an unnecessary change in the character of the community by effectively privatizing and closing off the entire width of a public right-of-way. The fact that the applicants and their predecessors have gotten away with these illegal encroachments for so long does not mean these changes need to be made permanent. If the city believes it is desirable to close the alley to the public, then this should be done through an orderly vacation procedure by which the neighbors on each side of the alley would presumably obtain their respective half of the area, instead of allowing the applicants to effectively claim for themselves the entire width of the right-of-way to the exclusion of all the neighbors.
In addition, the applicants’ illegal encroachments create a closed-in feel in the community, blocking neighbors’ access to air, light, and views.
Detriment to the interests of the general public
A proposed encroachment must “not be a detriment to the interests of the general public.” (Del Mar Mun. Code, § 23.28.070.C.5.) The applicants’ encroachments are a detriment to the interests of the general public because they physically and psychologically prevent members of the public from using a public right-of-way.
Conversion of significant areas of public property to private use Last but certainly not least, a proposed encroachment must “not convert significant areas of public property to private use.” (Del Mar Mun. Code, § 23.28.070.C.6.) The individual and cumulative effect of the applicants’ encroachments is to privatize the entire width of a public right-of-way.
Despite the applicants’ miniscule sign purporting to invite the public to “enjoy” the area, they cannot deny that their encroachments make the public right-of-way visually indistinguishable from their backyard, and the combined effect of the densely planted trees, bushes, and bamboo grove is to physically enclose the area and exclude the public. It is worth repeating the question: if this were not true, then why did the applicants feel it was necessary to place a sign (albeit a very small and inconspicuous one) inviting the public to “enjoy” the area? It is one thing to put plantings in a narrow landscaping strip along the edge of the right-of-way adjacent to one’s own property, as is common in this city and allowed under certain conditions by City Council Policy 110, discussed further below. It is quite another thing to take over the entire width of the right-of-way and annex it to one’s backyard, which is precisely what the applicants are trying to do. There is no interpretation of section 23.28.070.C.6 that would allow this. 3 January 8, 2024 Item 09
Del Mar City Council
January 8, 2024
4 City Council Policy 110
In the past, residents of Del Mar have desired to beautify unpaved strips of land on the public rightof-way adjacent to their property by landscaping the area. To accommodate this desire, the city adopted City Council Policy 110, which allows for landscaping within these strips—but within strict limits to protect the public interest. Policy 110 specifically prohibits such landscaping when it “[r]esult[s] in a wholesale change in appearance or use of the area, to the detriment of the community.” The combined effect of the applicants’ encroachments is nothing less than a wholesale change in appearance and use of the area from an alley to a private backyard. This is to the detriment of other members of the community who wish to use the area at least for pedestrian access and to preserve the open space area for air, light, and views.
The applicants’ encroachments further violate Policy 110 because they “[i]nterfere with development or use on an adjacent public or private property.” As noted, the large, overgrown trees and bushes planted by the applicants physically encroach onto my clients’ property, impede access to the public right-of-way, and block air, light, and views.
Finally, an encroachment may not “[r]esult in a permanent feature (e.g., stone wall or reinforced structure) that would be difficult to remove if the City exercises its right to modify the use of the area subject to the Encroachment Permit.” Several of the applicants’ encroachments are permanent in nature including large trees, bamboo, and hard landscaping that would be extremely difficult for the city to remove, and become more difficult to remove the longer they remain in place.
In short, there is nothing in Policy 110 or the Municipal Code that can possibly be construed as allowing a private property owner to take over the entire width of the adjacent right-of-way for use as their own, personal backyard, which is precisely what the applicants are trying to accomplish by requesting this encroachment permit. For all the reasons stated above, in the staff report, and in the separate letter submitted by my client John McNulty, the application for Encroachment Permit EP23-094 should be denied.
Very truly yours,
AANNESTAD ANDELIN & CORN LLP
Lee M. Andelin
cc: Matt Bator
John McNulty
4 January 8, 2024 Item 09
1 Melinda Gould
From: David Borman <[email protected]>
Sent: Monday, January 8, 2024 11:08 AM
To: City Clerk Mail Box
Subject: EP23-094 Agenda item #9
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 issues at hand today are not ornithology or horticulture or the loyalty of the applicant’s community friends.
The issues are the principle of public land open space and the integrity of the Municipal Code and City Council Policy 110.
Burdened by the twin constraints of an inhospitable terrain and their covenant with the City, the applicant magnified their disdain for principle and covenant with their infamous fireplace a quarter century ago. Over time they have curated another surreptitious, illicit backyard intrusion onto public land, which they now propose to retain.
I urge this Council, as the custodian of City open space, to deny he applicant’s request for this private colony.
Sent by David Borman
915 Klish Way
1 January 8, 2024 Item 09
1 January 8, 2024 Item 09
2 January 8, 2024 Item 09
1 Melinda Gould
From: Susan Hurd Trembath <[email protected]>
Sent: Monday, January 8, 2024 12:22 PM
To: City Clerk Mail Box
Subject: RED DOT agenda item #9
Follow Up Flag: Follow up
Flag Status: Flagged
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Dear City Council;
This letter will serve to reiterate my stance on Item #9, McManus encroachment.
I urge the council to ask decisively on this issue, so that it can be put to rest. Prolonged community input only creates divisions between neighbors.
Below is the text of my previous letter to the Council concerning this matter. --------------------------
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
1 January 8, 2024 Item 09
1 Melinda Gould
From: Gale Bakker <[email protected]>
Sent: Sunday, January 07, 2024 11:12 AM
To: City Clerk Mail Box
Subject: item #9 (1/8/2024) Encroachment Permit EP23-094:
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,
Thank you for your time in trying to sort this out. There seems to be quite a history of encroachment permits related to this area. I am opposed and find it unreasonable to take out any vegetation in this paper alley. I also don’t agree with spot enforcement. The beautification that has happened over the years has been a gift to the city, and should be treated as such. The north section, were it should connect with Crest Road is completely impassable to any pedestrians, yet this portion of the alley is not in question.
Removing vegetation doesn’t provide more access, and there is no view blockage. I hope your decision takes this into account. It seems no one benefits from denuding this alley. The party requesting enforcement doesn’t benefit either.
Respectfully Submitted,
S. Gale Bakker
335 La Amatista
Del Mar Ca
1 January 8, 2024 Item 09
Del Mar City Council,
Sprinkled within the staff report for agenda item #11 (Comprehensive Tree Update) are references to a goal of Del Mar’s Climate Action Plan to increase Del Mar’s urban tree canopy cover. The goal is to increase this three-fold from 10% to 30% to help mitigate climate change through carbon sequestration by trees. The ability of trees to help mitigate climate change through carbon sequestration is also frequently cited when issues involving trees arise in the City, including TSVS cases. The agenda item provides an opportunity to add reasoned arguments to the public dialogue for why the goal of increasing the urban canopy to help mitigate climate change is not supported by science and should not inform public policy.
While trees certainly sequester carbon in their biomass (until they eventually die and release the carbon through decay if they are not turned into lumber), increasing urban tree biomass is not an effective way to mitigate climate change. The problem is one of scale. The amount of carbon sequestered by trees is too small relative to carbon output from human activity (principally from the burning of fossil fuels), and there is not enough urban land for the world's urban forests to have a significant effect on climate change. Instead, more potent and less land-intensive mitigations should be the focus of climate action plans, particularly mitigations aimed at reducing the burning of fossil fuels.
A climate action plan involving the planting of 1 trillion trees has been suggested and subsequently embraced by some politicians. However, climate scientists have pointed out that it would take 9 million square kilometers (900 million hectares) of land (greater than the 8 million square kilometers of land in the contiguous United States) to plant 1 trillion trees. Moreover, the planting of these 1 trillion trees would have a minimal effect on global warming. Using the En-ROADS Simulator, climate scientists estimate that planting 1 trillion trees would only prevent
0.15 oC (0.27oF) of global climate warming by 2100.
https://www.climateinteractive.org/blog/trillion-trees-analysis-washington-post/ 1 January 8, 2024 Item 11
While the total area of global urban land is difficult to determine precisely (it depends on the definition of urban land, the method used to measure it, and the time frame used for the measurement), most studies estimate it at around 0.5 to 1% of total global land area or about
0.75 to 1.5 million square kilometers.
https://www.nature.com/articles/s41467-020-15788-7
This is well short of the 9 million square kilometers of land necessary to plant the 1 trillion trees that would have a minimal effect on global warming. There is just not enough urban land area in the world for maximum afforestation of all of it (a completely unrealistic goal) to have a significant effect on global warming. Moreover, maintaining trees in an urban (as opposed to natural) environment has significant associated carbon costs, further limiting the ability of urban trees to mitigate climate change.
A recent review article from ecologists and urban planners comes to the same conclusion that urban forests are not an effective mitigation to climate change:
https://www.frontiersin.org/articles/10.3389/fevo.2021.603757/full.
Based on this, increasing the cover of urban forests as a mitigation against climate change through carbon sequestration does not appear to be good public policy and should not influence the City’s updates to its various tree policies.
Urban forests do appear to have other benefits that should be considered by cities, depending on their location. These include adaptation to climate change through urban heat management by shading and evapotranspiration (particularly in hot climates), control of erosion from rainwater runoff (particularly in areas with high annual precipitation), and wind control 2 January 8, 2024 Item 11
(particularly in wind-prone areas). Urban forests also have other benefits including aesthetics/beautification, wildlife habitat, health and psychological benefits, and possibly a reduction in local particulate pollution.
Trees can also have adverse effects in an urban environment, and these should also be considered. These include fire hazards (particularly in high fire hazard areas, when trees are close to houses or powerlines, and with trees that have a high oil content and/or shed large amounts of flammable debris); falling branches and trees (particularly when very large trees are close to houses and with the expected increase in the severity of storms due to global warming); the carbon and water costs associated with the planting and maintenance of urban trees (particularly in an arid environment and in areas where landscape maintenance workers frequently drive to from distances, emitting carbon along the way), shading of solar panels (particularly in areas with a large number of sunny days); scenic view obstruction (particularly in areas with high-quality scenic views); and possible adverse effects of excess irrigation such as possibly contributing to coastal bluff failures in Del Mar with the constant leakage of water from the bluffs.
These considerations should be kept in mind and balanced while updating the City’s various tree policies.
Thanks again for your consideration,
Michael Deftos
3 January 8, 2024 Item 11
1 Melinda Gould
From: Camilla Rang <[email protected]>
Sent: Sunday, January 7, 2024 6:35 PM
To: City Clerk Mail Box
Subject: Support for item 11, City Council meeting 01.08.2024 CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.
Dear City Council,
I support an updated version of the TSVS (Trees, Scenic View and Sunlight Ordinance), one that protects the victim and not the perpetrator. As things stand now, the person who has their view stolen by trees growing up like walls, has to pay for all costs involved to restore their rightful view. This has to change. There has to be some incentive for the people who let their trees grow into and overtake neighbors views (which is against Del Mar's ordinance) to do something about it when neighbors ask. As it is now, the person who has the view taken away from them has to pay for a/the required mediation sessions (thousands of dollars), b/ the TSVS application ($4,000), and c/ if they win the case, they also have to pay for trimming the tree for ever. Something is very, very wrong here and has to be fixed. Let's make it so that the perpetrator has to pay if he/she loses the case.
Sincerely,
Camilla Rang
Del Mar
1 January 8, 2024 Item 11
1 Melinda Gould
From: Dolores Jamison <[email protected]>
Sent: Monday, January 8, 2024 11:17 AM
To: City Clerk Mail Box; David Druker; Dwight Worden; Terry Gaasterland; Tracy Martinez; Dan Quirk
Subject: Red Dot Item—January 8, 2024, Item #11
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.
January 7, 2024
Del Mar City Council
January 8 Council Agenda
Re: Item 12–Red Dot
Dear Mayor Druker and Council Members:
Regarding item 11, we would like to express our appreciation to the Council for listening both to the City’s Sustainability Advisory Committee (SAC) and to us and the more than 25 residents who joined us last year in urging the City to consider a comprehensive review of our urban forest.
While we do realize that the first phase of this effort will focus on increasing the effectiveness of the City’s Trees, Scenic Views, & Sunlight ordinance, which is likely to result eventually in more tree trimming and less preservation, the objectives of both phases are intertwined and the City and its residents will benefit from this more wholistic approach.
Regarding the role that Del Mar’s urban forest plays in the City’s Climate Action Plan (CAP), there can be no doubt about the role trees can play in sequestering carbon. Can more tree planting alone radically reduce the impacts of climate change in Del Mar? Of course not, and that is why tree preservation and planting are but one of several approaches called for in the CAP to reduce our carbon emissions and meet our climate goals. We should not forget, however, the multitude of benefits we receive from trees, besides their ability to sequester carbon. Trees improve air quality, benefit wildlife, and will also help our community stay cool when we experience worsening heat waves. And, of course, their positive impact on property values has been well-documented. A recent article on Yale University’s Climate Connections website:
https://yaleclimateconnections.org/2023/02/the-little-known-physical-and-mental-health-benefits-of-urban-trees/ credits trees with a wide variety of physical and mental health benefits: “Trees slow climate change and they help people live happier, healthier and longer lives.” Regarding Phase 2 of the draft plan presented by Matt Bator, we do feel strongly that an essential objective needs to be added. The City needs to make a commitment—as previously requested by SAC—to commission or authorize another LiDAR study in order to effectively assess the state of our tree canopy. If this assessment is not completed, the only such study we will have is from 2016, when the CAP was first approved.
Innovations in LiDAR technology have both significantly reduced the costs and the size of LiDAR sensors, to the extent that it is now possible to attach a LiDAR payload to a drone. Drones are allowed to fly up to 400-feet, which is likely more than adequate to capture the needed LiDAR data. Perhaps city staff or SAC can investigate this service so we can ascertain if this endeavor would now be affordable. We simply can’t expect SAC to develop meaningful, data-driven goals relative to our trees without a new assessment.
Thanks again for listening to our concerns about Del Mar’s urban forest and for moving forward on this important and comprehensive review.
Sincerely,
Dolores Davies Jamison
Richard Jamison
Crest Road
1 January 8, 2024 Item 11