By submitting the Application to the City, Applicant acknowledges and agrees to defend, indemnify and hold harmless the City of Del Mar and its officers, boards, commissions, agents, and employees (collectively, “City Indemnified Parties”) from and against any and all claims, demands, causes of actions, damages, injuries, litigation, costs, and/or liability (collectively, “Claims”) arising out of or related to any Claims brought against the City Indemnified Parties to attack, set aside, void, or annul any determination granted by the City relating to the Application, including, but not limited to, the adoption of a Resolution and issuance of a plan for Restorative Action work, including ongoing maintenance, required to be performed by the Planning Commission, or City Council on appeal, and any and all costs incurred in enforcing the same, except for those costs of enforcement that the City may recover from the Tree Owner.
The City may, at its sole and absolute discretion, choose to participate in the defense of such Claims undertaken by the Applicant, or retain separate counsel whose attorneys’ fees and costs shall be paid by the Applicant. Such participation by the City in the defense of such Claims or the retention of separate counsel by the City shall not relieve the Applicant of their obligations under this Section.
23.51.140 Limitations.
A. It is not the intent of the City in adopting this Chapter to affect obligations imposed by an existing easement or a valid pre-existing covenant or agreement between private parties.
B. Nothing in the Chapter shall deny private parties the right to seek remedial action for any Imminent Danger caused by any Tree(s).
23.51.150 Process for Alleging Obstruction of Scenic Views and/or Sunlight by City Trees.
The below provisions shall apply when any Person alleges Obstruction of Scenic Views and/or Sunlight caused by City Trees. The process for determining whether an unreasonable Obstruction of Scenic Views and/or Sunlight has occurred as a result of City Trees is set forth below.
A. Application Submittal.
1. Any Person who believes that the growth, improper maintenance and/or installation of a City Tree has caused an unreasonable Obstruction of Scenic Views and/or Sunlight may submit an Application to the City in accordance with the provisions of Section 23.51.040(A) of this Chapter.
2. Together with the submission of an Application, the Applicant shall remit an Application fee to the City in an amount established by Ordinance or Resolution of the City Council.
3. Upon review of the Application for completeness, the Director may request additional information, if necessary, within thirty (30) days following Application submittal.
4. The Application will not be deemed complete for further processing by the City until all materials required by this Section and any additional information requested by the Director have been submitted in a format deemed acceptable by the Director.
B. City’s Review of the Alleged Obstruction. Upon receipt of a complete Application, the Director, in consultation with the City’s Public Works Director and/or a City Arborist, shall:
84 October 6, 2025 Item 8
1. Review and evaluate the Application to determine whether the required findings of fact can be made pursuant to Section 23.51.060 of this Chapter;
2. Perform a site visit to the Applicant’s PLA, room or rooms affected by Sunlight Obstruction, or Solar Energy System; and
3. Consider the public interest in maintaining the public environment created by the existing City Tree(s) and its/their contribution to the community character.
C. City’s Decision and Public Notice.
1. The Director shall approve or deny the Application by written decision within thirty (30) days following the Application has been deemed complete.
2. The Director’s written decision shall specify findings of fact for Application approval or denial as provided in Section 23.51.060 of this Chapter.
3. Approval of an Application under this Section shall include appropriate Restorative Action based on a recommendation by City staff working in consultation with a City Arborist. The Restorative Action plan shall consider the criteria set forth in Section 23.51.070 of this Chapter, shall be consistent with Section 23.51.080 of this Chapter, and shall involve the least amount of impact necessary to the overall aesthetic of the City Tree(s).
4. If the Restorative Action plan requires Tree Removal of a Protected City Tree, the City shall provide public notice of the Director’s decision, as follows:
a. Notice shall be posted on the City’s website and mailed to all owners of real property located within three hundred (300) feet of the location of the City Tree(s). b. Notice shall include a number assigned to the Application, a description of the City Tree(s) causing an Obstruction of Applicant’s Scenic Views and/or Sunlight, and information on the process for appealing the Director’s decision.
5. The Director’s decision shall become final on the eleventh (11th) business day following the date of the posted/mailed public notice, unless appealed.
D. Appeal of Director’s Decision. For purposes of this Section only, the Director’s decision may be appealed to the Planning Commission pursuant to the provisions of this Municipal Code. The Planning Commission’s decision shall become final on the eleventh (11th) business day following the adoption of the Planning Commission’s Resolution, unless appealed to the City Council in accordance with Section 23.51.100 of this Chapter.
E. Procedures for Restorative Action Work and Allocation of Costs.
1. If any Restorative Action work is required to be performed in accordance with this Section, the City and the Applicant shall each be responsible for paying fifty percent (50%) of the cost to perform the Restorative Action work.
85 October 6, 2025 Item 8
2. Within thirty (30) days following the date the Director’s written decision approving the Application, City staff shall provide the written decision to the City’s contracted tree maintenance company to obtain a cost estimate for the performance of the Restorative Action work.
3. Upon receipt of the cost estimate for the performance of the Restorative Action work, City staff shall provide the Applicant with an invoice for fifty percent (50%) of the total cost estimate.
4. Within fifteen (15) days following receipt of the invoice from the City, the Applicant shall remit the full invoiced amount to the City as a deposit for the performance of the Restorative Action work. Failure of the Applicant to timely make the required deposit within these fifteen (15) days will render the Director’s decision requiring the Restorative Action work to become null and void.
5. Upon completion of the Restorative Action work, the deposited funds shall be used towards payment of the Applicant’s fifty percent (50%) share of the total cost to perform the Restorative Action work.
a. If the final cost of the Restorative Action work is less than the initial estimate, any unused amount of the deposit shall be returned to the Applicant. b. If the final cost of the Restorative Action work exceeds the initial estimate, the City shall provide the Applicant with an invoice for the remaining amount owed by the Applicant.
Within fifteen (15) days following receipt of the invoice, the Applicant shall remit to the City the remaining amount of the Applicant’s share owed to the City. 86 October 6, 2025 Item 8
1 Matt Bator
Subject: FW: TSVS Rewrite: Concerns Regarding “Run with the Land” Language Attachments: Jurisdictional View Ordinance Comparison Chart.pdf; RunWithTheLand_Research.xlsx From: Janet Wilson <[email protected]>
Sent: Tuesday, August 5, 2025 4:07 PM
To: Planning Mail Box <[email protected]>; Tracy Martinez <[email protected]>; Dan Quirk <[email protected]>; Terry Gaasterland <[email protected]>; John Spelich <[email protected]> Cc: Janet Wilson <[email protected]>
Subject: TSVS Rewrite: Concerns Regarding “Run with the Land” Language 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 Planning and City Councilmembers,
Thank you for your hard work rewriting Del Mar’s TSVS ordinance. For this update, the Planning Department developed a Jurisdictional View Ordinance Comparison Chart of 27 other “view” cities and reviewed historical staff reports from Clyde Hill, which served as the original template for Del Mar’s TSVS in 2002.
Aligning with other cities provides a solid foundation, promotes consistent decision-making, and enhances legal defensibility. These are meaningful goals that should guide the revision process. With this in mind, there are observations about two of the proposed changes in Section 23.51.010 – Purpose:
1. Look-back Window - A Consistent Change
When the Planning Commission asked why the 10-year look-back window was changing, the explanation was that Del Mar is the only city with such a limit, and that removing it would align our ordinance with other “view” cities.
While there doesn’t appear to be controversy around the current 10-year window, the rationale to align with other jurisdictions is sound.
2. Run with the Land - An Inconsistent Shift
When asked why restorative actions shouldn't "run with the land", the Planning Commissioners were told that was never the intent.
The Staff reports (to both the Planning Commission and City Council) describe this change as follows:
"Language to clarify and affirm that approvals of TSVS applications and associated restorative actions do not run with the land, and rights provided by such approvals terminate upon the sale of applicant’s property."
These statements contradict our current ordinance, DMMC 23.51.070(A), which says:
Restorative Action may include additional written conditions (including ongoing maintenance), and directions as to appropriate timing of such actions, and may be made to run with the land and apply to successors in interest.
https://library.municode.com/ca/del_mar/codes/municipal_code?nodeId=TIT23BUCO_CH23.51TRSCVISU_23.51.070HIRE AC
ATTACHMENT G
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2 Describing this proposed change as a clarification may be misleading, because it is effectively a reversal.
Running with the Land - Comparable Cities:
Alameda County
C. Restorative action may include written conditions (including ongoing maintenance), and directions as to appropriate timing of such actions, and may be made to run with the land and apply to successors in interest.
Belvedere Access to a view or sunlight does not run with the land as an easement.
Beverly Hills
10-8-107: DECISIONS INTENDED TO RUN WITH THE LAND; DISCLOSURE:
Decisions regarding view restoration shall be binding on all current and future owners of view owner's property and foliage owner's property, and such decisions must be disclosed by each owner to subsequent owners of the property.
Clyde Hill WA
The hearing examiner may direct that the work prescribed pursuant to CHMC 17.38.070 be continuously maintained and that the examiner’s decision may be binding upon future owners and run with the land, in which case the city shall record the examiner’s decision with the King County recording office and shall be reimbursed by the complainant.
Culver City
C. Restoration action may include written conditions (including ongoing maintenance) and directions as to appropriate timing of such actions, as well as recordation of an agreement containing covenants or other documentation to memorialize the conditions and make them applicable.
Del Mar
A. Restorative Action may include additional written conditions (including ongoing maintenance), and directions as to appropriate timing of such actions, and may be made to run with the land and apply to successors in interest.
El Cerrito 10. Restorative action may include written conditions concerning ongoing maintenance and should be recorded, made to run with the land and apply to successors in interest.
Laguna Beach
§ 12.16.100 View decisions binding on future owners—Disclosure obligations.
Decisions made by city staff and the view restoration committee regarding view restoration and view preservation run with the land and shall be binding on the claimant and the vegetation owner and their heirs, successors and assigns. Such decisions, to the extent permitted, shall be recorded in the official records of the county of Orange. In addition, such decisions shall be set forth in any real property report required by Chapter 14.76 and should be disclosed by each owner to prospective purchasers of their properties.
Malibu Restorative action may be made to run with the land and apply to successors in interest.
Orinda
D. Restorative action may include written conditions (including ongoing maintenance) and directions as to timing for taking appropriate actions and may be made to run with the land and apply to successors in interest.
Rolling Hills Estates
It is also not the intent or purpose of this chapter for the city to create either a covenant running with the land (for example, CC&Rs or deed restriction) or an equitable servitude (for example, easement or license). However, the city will keep a record of agreements and decisions reached pursuant to Sections 17.55.070, 17.55.080, 17.55.090 and 17.55.110 of which it is notified, and provide those agreements and/or decisions as part of the pre-purchase inspection report it provides to prospective purchasers of property in the city who request such a report.
Santa Barbara Not a Covenant or Servitude. It is not the intent and purpose of this chapter for the City to create either a covenant running with the land or an equitable servitude.
Tiburon
(c) Restorative action may include written conditions (including ongoing maintenance), and directions as to appropriate timing of such actions, and may be made to run with the land and apply to successors in interest.
Torrance
Nor is it the intent or purpose of this Article for the City to create either a covenant running with the land (for example, CC&Rs or deed restriction) or an equitable servitude (for example, easement or license). However, the City will keep a record of agreements and decisions reached pursuant to Sections 92.41.100, 92.41.110, and 92.41.120 of which it is notified, and provide those agreements and/or decisions to those who request such a report.
Ventura County E. Not a Covenant or Servitude. It is not the intent and purpose of this Chapter for the City to create either a covenant running with the land or an equitable servitude.
Westlake Village
C. Restorative action may include written conditions (including ongoing maintenance) and directions as to appropriate timing of the required conduct. Restorative action may be made to run with the land and apply to successors in interest.
Comparison Snapshot:
Only 5 cities explicitly state that view decisions do not run with the land. 88 October 6, 2025 Item 8
3 11 cities (including Del Mar’s current ordinance) state they may run with the land. The other 12 cities from the Jurisdictional View Ordinance Comparison Chart are silent, which typically implies the default legal assumption: that decisions tied to the land bind future owners.
In total, 81% of cities either affirmatively or implicitly allow view decisions to run with the land.
Importantly, none of the comparison cities includes an exception based on inheritance. A scenic view doesn’t change when ownership changes, so why should the protection? Linking rights to how a property is transferred (sold vs inherited) is inconsistent. Additionally, requiring a new owner to restart a process that was already resolved is unnecessary, burdensome, and may undermine the integrity of the original decision.
Adopting this change would put Del Mar out of step with the majority of comparable cities.
And should an inheritance exception be included, Del Mar would stand alone as the only city with such a clause.
Summary
The look-back window change makes sense because it follows the logic of aligning with what other cities are doing. But the “run with the land” proposal doesn’t follow that same logic at all. In fact, it moves Del Mar in the opposite direction.
If one of the goals of this TSVS update is to align with other view cities, the “run with the land” language should be revisited. Laguna Beach offers a clear, well-written model that could serve as a template.
My research can be verified using the attached spreadsheet with direct links to the relevant ordinances.
Thank you for your time,
Janet Wilson
89 October 6, 2025 Item 8
1 Matt Bator
Subject: FW: Strengthening Del Mar’s Sunlight Provisions - Comment on July 7 Council Meeting Attachments: SunshineArea.xlsx
From: Janet Wilson <[email protected]>
Sent: Thursday, August 7, 2025 6:28 PM
To: Planning Mail Box <[email protected]>
Cc: Terry Gaasterland <[email protected]>; John Spelich <[email protected]>; Dan Quirk <[email protected]>; Tracy Martinez <[email protected]>; Janet Wilson <[email protected]> Subject: Strengthening Del Mar’s Sunlight Provisions - Comment on July 7 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.
Dear Planning and City Councilmembers,
Although the restorative actions when obstructed are similar, Views and Sunlight differ in essential ways. Both contribute to a sense of openness which we all value, but Sunlight surrounds us daily, shaping quality of life, supporting health, and sustaining gardens. Therefore, I was pleased to hear during the July 7 City Council meeting that the scope of Sunlight protection will be revisited and that it will no longer be limited to only Del Mar’s narrowly defined “primary living area.”
How do other “View” cities manage Sunlight protections? Reviewing 27 other “View” cities and 18 of them address Sunlight, of which 9 contain a Sunlight definition:
3 have “availability or access to light from the sun across property lines” 6 have “availability of direct or indirect Sunlight to the primary living area of a residence” Overview Chart (the spreadsheet with a direct link is attached to double-check this information):
90 October 6, 2025 Item 8
2 Note: View cities that do NOT mention Sunlight protection are Beverly Hills, Culver City, El Cerrito, Malibu, Torrance, Oakland, Rancho Palos Verdes, and Westlake Village.
Interestingly, most jurisdictions allow Sunlight (and View) claims from multiple areas of a home and property and even Del Mar’s “template” city, Clyde Hill, states:
“Living and entertainment areas” means areas from which a view is observed most often by the occupants relative to other portions of the residence, which may include both interior and exterior spaces.”
The majority of View cities reference broader property areas or the entire real property; very few rely solely on a narrowly defined interior space.
While I understand it might be challenging to change Del Mar's definition of Primary Living Area, for Sunshine the broader definition makes sense especially if there aren’t privacy issues! Concerns about a Obstruction of Sunlight & Shade Study Requirement It is being proposed to add the following language to 23.51.040:
“For applications involving sunlight obstruction, requires a shade study.” This is entirely new territory. No other “View” city with Sunlight protection requires this. I wasn't sure what a shade study might be, so I looked it up:
A shade study, also known as a shadow study, is an analysis of how sunlight and shadows interact with a building or site at different times of the day and year. It helps architects, urban planners, and landscape designers understand how sunlight will affect a space, optimize building design, and ensure comfortable outdoor environments.
91 October 6, 2025 Item 8
3 Requiring residents to provide technical studies like a shade study places an unreasonable burden on applicants. Most homeowners would never anticipate needing to document “before” conditions or hire consultants to demonstrate a loss of sunlight.
Critically, Del Mar’s ordinance defines sunlight as both direct and indirect.
Vegetation may not cast sharply defined shadows on windows, but it can still significantly reduce the ambient light around a property, such as the soft, diffused light typical in Del Mar during overcast coastal days (May Gray and June Gloom). Overgrown vegetation can also lessen the quality of low-angle sunlight during late afternoon or sunset year-round. Excessive vegetation can negatively impact daily livability and enjoyment, which is exactly what this ordinance aims to protect.
Shade studies are not designed to measure these qualitative aspects of natural sunlight, and residents should not be expected to have documented such subtle lighting conditions in advance. For all of these reasons, the following proposed language should be reconsidered as unrealistic and overly burdensome:
"Based on a review of the photographic evidence and exhibit submitted by the Applicant, the Subject tree(s) cast(s) shadows greater than fifty percent (50%) of the total window glazing in the Applicant’s PLA at any time between 10:00 a.m. and 2:00 p.m., Pacific Standard Time (PST)." Balancing Burden & Justification
It’s difficult and stressful for someone to take a stand and initiate conflict with a neighbor. However, it seems that conflict is a common outcome in every TSVS application. These situations should be more balanced and the property owner causing the issue should be required to justify that their vegetation does not create undue risk or negatively impact their neighbors for several reasons:
Accountability - Property owners are responsible for maintaining their land, including trees and vegetation. If their property affects others, by blocking Views or Sunlight, they should be accountable for the impact and justify why no action is warranted. Precedent and Policy Consistency - Requiring justification helps build a consistent record for how similar cases are handled. This supports clearer future policies and reduces subjective or arbitrary outcomes.
Encouraging Resolution - When both sides must justify their stance, it often encourages communication and compromise, leading to more amicable resolutions without prolonged disputes.
Current Definitions
Sunlight shall mean the availability of direct or indirect Sunlight to the Primary Living Area or to the existing solar energy system of a residence.
Primary Living Area shall mean that (single) portion of a residence from which a Scenic View is observed most often by the occupants and guests at the residence. The determination of Primary Living Area is to be made on a case-by-case basis and shall be consistent with any prior determinations made by the City.
Proposed Definitions
Sunlight shall mean the availability of direct and/or indirect sunlight to the PLA or to the existing Solar Energy System of an Applicant’s primary residence.
Primary Living Area (PLA) shall mean that (single) portion of a primary residence (typically the living room, dining room or great room) determined by the Planning Commission, or City Council on appeal, to be the main gathering and entertainment room of the primary residence.
1. The determination of a PLA is to be made on a case-by-case basis and shall be consistent with any prior determinations made by the City. Each primary residence shall be limited to the designation of only one (1) PLA (a primary residence does not include “Accessory Dwelling Units”, as that term is defined by Chapter
30.91 of this Municipal Code).
92 October 6, 2025 Item 8
4 2. Under rare and extraordinary circumstances, the Planning Commission, or City Council on appeal, may determine that another area of a primary residence (other than the living room, dining room or great room) is the PLA.
3. Under no circumstances shall a bathroom, laundry room, storage room, stairwell, hallway, outdoor deck, patio, balcony, or any other area outside of the enclosing walls of a primary residence, be designated as a PLA. Additionally, a PLA may not be from any space within an Accessory Dwelling Unit (as that term is defined by Chapter 30.91 of this Municipal Code)
Comments
Regarding the current and proposed Primary Living Area requirement of “consistent with any prior determinations,” there are circumstances (such as a remodel) where the Primary Living Area or View Corridor might change.
Accessory Dwelling Units (ADU) are not currently part of Del Mar’s TSVS. Is adding them just unnecessary wording and complications since none of the other View cities include ADU in their ordinance? Sunlight and solar energy are closely connected, and Del Mar already has a Solar Energy Ordinance (DMMC
23.20). So, would it make sense for the TSVS ordinance to reference the Solar Energy Ordinance and recognize it as having precedence where solar access is concerned? Doing so would clarify the scope of each ordinance and allow this chapter to focus specifically on revising general Sunlight access, which is the primary purpose.
Consider Real Property or Property Lines vs Primary Living Area? Berkeley does not have a definition for Sunlight, but it is addressed in the definition of Obstruction:
"Obstruction" means any substantial blocking or diminishment of a view from a structure lawfully used as a dwelling or access to sunlight to the real property which is attributable to the growth, maintenance or location of tree(s).”
Perhaps Del Mar follows that lead to update the definition of Obstruction (new words in green):
Obstruction shall mean any substantial blocking or diminishment of Scenic Views from the Primary Living area and/or access to Sunlight to the real property that is attributable to the growth, improper maintenance or location of a Tree or Vegetation.
I hope these observations help ensure that Sunlight access remains a clear, equitable, and enforceable right for every Del Mar resident.
Thank you for your continued attention to this important revision.
Janet Wilson
619.733.1428
93 October 6, 2025 Item 8
1 Matt Bator
Subject: FW: TSVS Ordinance Rewrite - Regarding Section 23.51.090 – Concerns Regarding Cost Shifting and Fairness
Attachments: 23.51.090_AllocationsofCosts.pdf
From: Janet Wilson <[email protected]>
Sent: Wednesday, August 13, 2025 9:47 PM
To: Planning Mail Box <[email protected]>; Dan Quirk <[email protected]>; John Spelich <[email protected]>; Tracy Martinez <[email protected]>; Terry Gaasterland <[email protected]> Cc: Janet Wilson <[email protected]>
Subject: TSVS Ordinance Rewrite - Regarding Section 23.51.090 – Concerns Regarding Cost Shifting and Fairness 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 Planning and City Councilmembers,
For the TSVS rewrite, Guiding Principle #5 states: Ensure an equitable cost allocation process to initiate the view/sunlight restoration process, perform view restoration work, and maintain restored scenic views and sunlight. Extensive revisions have been made to Section 23.51.090 to support Guiding Principle #5 and what has been called Cost Shifting. To better understand these significant changes, I created the attached flowchart. These are my observations.
Overall Observation — Burden on Applicants
The proposed revisions still place a disproportionate burden on Applicants, who must pay substantial up-front costs that are never reimbursed, even when the Reviewing Authority finds the Tree Owner at fault. This imbalance deters legitimate applications, and the expanded length and complexity of the revised ordinance will make the process harder to navigate and more intimidating.
1. Application Fees & Tree Survey Costs
Del Mar's application fees are among the highest compared to other View Cities. Under both the current ordinance and the proposed revisions, regardless of the decision, the Applicant is always responsible for the application fees. This policy should be reconsidered. By the time the Applicant pays the fee, every effort to resolve the matter amicably has already been made. When the Reviewing Authority determines restorative action is appropriate, reimbursement of the fees to the Applicant should be required.
Similarly, when the Reviewing Authority determines restorative action is appropriate, reimbursement of tree survey costs to the Applicant should be required even if the Tree Owner participated in mediation that failed to resolve the matter.
Partial cost-sharing should be allowed only when both parties share responsibility. 94 October 6, 2025 Item 8
1 Matt Bator
Subject: FW: Chapter 23.51 - TSVS - Proposed changes - Comments regarding ‘City Tree,’ ‘Parkway,’ and right-of-way responsibilities
From: Janet Wilson <[email protected]>
Sent: Saturday, August 23, 2025 2:20 PM
To: Planning Mail Box <[email protected]>; Dan Quirk <[email protected]>; Terry Gaasterland <[email protected]>; John Spelich <[email protected]>; Tracy Martinez <[email protected]>; Ashley Jones <[email protected]>
Cc: Janet Wilson <[email protected]>
Subject: Chapter 23.51 - TSVS - Proposed changes - Comments regarding ‘City Tree,’ ‘Parkway,’ and right-of-way responsibilities
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 Planning and City Councilmembers,
Chapter 23.51 addresses obstruction and restoration of Scenic Views and Sunlight, and “Trees” appears in the title only because they are the primary cause of an obstruction (and not because the chapter governs Trees).
The proposed changes to 23.51.020 include adding a definition for “City Tree”, but removing the definition of “Tree”.
(E) City Tree shall mean any Tree planted, installed, owned, and/or maintained by the City, which is located in, within or on a City park, Parkway, street, median, or other property owned by the City.
For purposes of this Chapter and consistent with Section 23.51.030 of this Chapter, the term “City Tree” does not include any Tree located within the public right-of-way between the improved street edge and the property boundary of a private lot.
(S) Tree shall mean any perennial plant growing on public or private property, having a selfsupporting woody main stem or trunk with the potential to obstruct Scenic Views or Sunlight, including but not limited to Trees, shrubs, hedges, and bushes or any plant material planted or growing in a dense continuous line so as to form a thicket barrier or naturally grown fence.
References to "Tree" shall include the plural.
This new definition of “City Tree” effectively places every tree into one of three categories:
1. Private Tree – owned and maintained by the property owner
2. Public Right-of-Way Tree – located on City property inside the public right-of-way, but maintained by the [adjacent] property owner
3. City Tree – located on City property outside the public right-of-way, and maintained by the City
95 October 6, 2025 Item 8
2 The objective seems to be that the Applicant follows the normal TSVS application process (including associated fees) for both a Private Tree and a Public Right-of-Way Tree, but when a City Tree is causing the obstruction, the ordinance aims to streamline the process. By defining Public Right-of-Way Trees as a subset of City Trees, the ordinance calls out that it is the adjacent property owner (and not the City) who is responsible for maintenance when there is an obstruction under 23.51.
In Del Mar, many homeowners maintain their adjacent right-of-way, but others do not. Under this update, if trees in a property owner’s adjacent right-of-way cause an obstruction, the owner is responsible whether they maintain the trees or even realize the obligation. This issue was raised at the last City Council meeting regarding properties backing onto Jimmy Durante, with many others likely in similar situations. Once clarified, responsibility for obstructions caused by right-of-way trees will be explicitly assigned, a goal behind these changes.
This raises two important questions: Shouldn’t homeowners be formally notified of this new responsibility? And conversely, who is responsible for the public right-of-way when there is no obstruction?
California State Streets and Highways Code section 5610 states that landowners are responsible for maintaining sidewalks in safe and unobstructed condition, even if the sidewalk is publicly owned. This implies landscaping in the right-of-way is also the homeowner's responsibility.
Placing the definitions of ‘City Tree’ and ‘Public Right-of-Way Tree’ in 23.50 Trees would allow 23.51 to remain focused on obstruction, while making clear that homeowners are responsible for maintaining adjacent rights-of-way. Either way, this represents a significant change for all residents.
I hope this helps.
Janet Wilson
619.733.1428
The term “Public Right-of-Way Tree” is awkward. Many municipal codes use “Street Tree” or “Parkway Tree” to describe trees in the right-of-way maintained by adjacent property owners.
City Council Policy 110 addresses private encroachments into city rights-of-way, stating:
“There are numerous circumstances in Del Mar where an improved (paved) section of a City rightof-way is narrower than the width of the right-of-way itself. This results in an area of unimproved right-of-way adjacent to private property. In many cases, the owner of the adjacent property, or designee, proposes to install landscaping and other landscape-related improvements in the unimproved portion of the right-of-way. This has the beneficial effect of beautifying the area adjacent to the paved roadway, without the City having to bear the costs for installing or maintaining the improvements. These are generally considered to be an appropriate use of a rightof-way but still subject to review under the Encroachment Permit process.” https://www.delmar.ca.us/DocumentCenter/View/1956/110-Private-Encroachments-Into-CityRights-of-Way-PDF
Del Mar Chapter 23.28 – Encroachment Permits
C. Encroachment shall mean development or use of any portion of a City Right-of-Way or Easement in a manner other than its intended use. Encroachment shall include, but not be limited to, any of the following:
96 October 6, 2025 Item 8
3 2. Planting of any tree, shrub, grass or other growing thing within a City Right-of-Way or Easement;
https://library.municode.com/ca/del_mar/codes/municipal_code?nodeId=TIT23BUCO_CH23.28E NPE
Cut-and-paste definitions are maintenance-intensive. Therefore, if 23.51 does require a definition of City Tree, it should be
(E) City Tree - see 23.50.020 City Tree
97 October 6, 2025 Item 8
2 2. Mediation — Determination of “Good Faith”
The revised ordinance should define the standard and identify the decision-making body for determining whether a party has engaged in “good faith” mediation. Without a clear standard, determinations risk being subjective, potentially encouraging strategic behavior that undermines the intent of the cost allocation provisions.
3. Existing Decisions - Ongoing Maintenance
Existing decisions have placed an unfair burden on Applicants to pay for the ongoing maintenance of the Tree Owner’s property. This is inequitable and should be eliminated. Landscaping owners must be responsible for the upkeep of their own property. In the case of Del Mar Woods, Applicants have paid approximately $70,000 over the past 10 years to maintain the Tree Owners’ landscaping.
4. Omission
In Section 23.51.090(D)(2)(a), the second sentence omits “, or City Council on appeal.”
5. Excessive Language
a. Section 23.51.090 has expanded from about a half a page (550 words) to three pages (1,660 words) due to the incorporation of what I term the "nitty-gritty" what-if-then-else scenarios.
Would it be more effective if the cost allocation structure were placed in the ordinance and the implementation details in a supporting Policy or Guidelines document? b. Consider defining "Reviewing Authority" in Section 23.51.020 as "Planning Commission, or City Council on appeal" and using the term consistently to improve clarity and readability.
3. Thank you again for your time and effort on this important rewrite. I hope this input is useful.
Janet Wilson
619.733.1428
98 October 6, 2025 Item 8
TREE OWNER
Maintenance Costs
Pays 100%
Yes
No
a. The initial Restorative Action work shall be completed within thirty (30) days following adoption of the Resolution approving the Restorative Action plan (or such other period of time as the Planning Commission, or City Council on appeal, may determine to be reasonable and appropriate).
No
Done
If the Tree Owner does not have the initial Restorative Action work completed within the time‐period indicated by the Planning Commission? ?? ???? ??????? ?? ????? or within thirty (30) days, then the City may pursue any and all available remedies and enforcement mechanisms against the Tree Owner, in accordance with Section 23.51.110 of this Chapter.
b. The Tree Owner shall notify the City in advance of the date and time that the initial Restorative Action work is scheduled to take place.
City staff, or a qualified third party designated by the City, shall inspect the initial Restorative Action work, upon completion, to determine whether the work complies with and satisfies the requirements and conditions contained in the Restorative Action plan. The City’s inspection of the initial Restorative Action work shall be scheduled for a time when the contractors performing the initial Restorative Action work are still present at the Site of the Subject Tree and available to perform additional work, if deemed required by the City. The final determination of compliance with and satisfaction of the Restorative Action plan is made by the Director. a. The initial Restorative Action work shall be completed within thirty (30) days following adoption of the Resolution approving the Restorative Action plan (or such other period of time as the Planning Commission, or City Council on appeal, may determine to be reasonable and appropriate).
Initial
Restorative
Action?
a. The Tree Owner has refused to participate in good faith attempts to resolve the dispute as required by Section 23.51.040(B) of this Chapter; and/or b. The Subject Tree constitutes a hazard to the safety of the Applicant and/or the Applicant’s property, and is being maintained by the Tree Owner in disregard for the safety of others and/or property.
Yes
a. For any initial Restorative Action work, Tree Owner shall submit to the City two (2) itemized written cost estimates for performing the initial Restorative Action work. The estimates shall be prepared by licensed and insured landscape or Tree service contractors, under the supervision of a Certified Arborist, and acceptable to the City. The estimates shall be submitted to the City within thirty (30) days following the adoption of the Resolution approving the Restorative Action plan. The estimates shall be subject to review for acceptance by the Director. c. Within fifteen (15) days following the Director’s acceptance of the cost estimates submitted by the Tree Owner, the Applicant shall deposit with the City an amount equal to the cost percentage required to be paid by the Applicant pursuant to Subsection (B) of this Section, using the lower amount of the two cost estimates. Failure of the Applicant to timely make the required deposit within these fifteen (15) days will render the City’s Resolution requiring the Restorative Action work to become null and void. d. Once the Applicant’s deposit is received by the City, the Tree Owner shall, at the Tree Owner’s sole discretion, choose which one of the two companies that submitted estimates accepted by the Director will perform the initial Restorative Action work, and shall notify the City of its decision. b. Estimates provided by the Tree Owner shall only include, and the Applicant shall only be responsible for, payment of costs to perform the initial Restorative Action work (excluding any ongoing maintenance) as required by the Planning Commission, or City Council on appeal. Such costs may include debris removal/recycling fees, and the purchase and installation of mitigation Trees (if required by the Planning Commission, or City Council on appeal). Applicant shall not be responsible for any other costs associated with the Restorative Action work required to be performed, including, but not limited to, tarping, removal and/or replacement of fencing, walls or other improvements to bring equipment onto the Site of the Subject Tree, temporary relocation and re‐installation or removal and replacement of appurtenances, structures, fixtures and other improvements on the Site of the Subject Tree, and/or any other costs not directly related to the costs of performing the Restorative Action work, as required by the Restorative Action plan approved by the Planning Commission, or City Council on appeal.
If the Tree Owner does not have the initial Restorative Action work completed within thirty (30) days or within the time‐period indicated by the Planning Commission, or City Council on appeal, then the City may pursue any and all available remedies and enforcement mechanisms against the Tree Owner, in accordance with Section 23.51.110 of this Chapter.
e. The Tree Owner shall notify the City in advance of the date and time that the initial Restorative Action work is scheduled to take place.
City staff, or a qualified third party designated by the City, shall inspect the initial Restorative Action work, upon completion, to determine whether the work complies with and satisfies the requirements and conditions contained in the Restorative Action plan. The City’s inspection of the initial Restorative Action work shall be scheduled for a time when the contractors performing the initial Restorative Action work are still present at the Site of the Subject Tree and available to perform additional work, if deemed required by the City. The final determination of compliance with and satisfaction of the Restorative Action plan is made by the Director. f. Following City approval of the initial Restorative Action work, the Tree Owner shall submit a copy of an invoice for the work performed to the City. Upon submittal of the invoice, the City shall transmit the funds held in the City’s deposit account to the Tree Owner.
Within thirty (30) days following the City’s receipt of the Applicant's deposit (or such other period of time as the Planning Commission, or City Council on appeal, may determine to be reasonable and appropriate), the Tree Owner shall schedule the initial Restorative Action work to be completed.
The Director reserves the right to consult with a Certified Arborist retained by the City if both of the estimates appear to be substantially above the professional average for such services, and in that case, the Tree Owner shall be responsible for reimbursing the City for the cost of consultation with the City Arborist and may be required to submit additional estimates to the City.
Tree Owner
Cooperative?
BEGIN
APPLICANT
ApplicantPay 100%
Tree Survey Cost
Application Fee
Pays 100%
(regardless of outcome)
TREE OWNER
Restoration Costs
Pays 100%
TREE OWNER
Tree Survey Cost
Refund 100%
(Back to Applicant)
Obstruction?
Yes
NO
TREE OWNER
Restoration Costs
Pays 50%
APPLICANT
Restoration Costs
Pays 50%
TREE OWNER
Tree Survey Cost
Refund 50%
(Back to Applicant)
99 October 6, 2025 Item 8
1 Matt Bator
Subject: FW: Chapter 23.51 - TSVS - Proposed changes - Comments regarding ‘City Tree,’ ‘Parkway,’ and right-of-way responsibilities
From: Janet Wilson <[email protected]>
Sent: Saturday, August 23, 2025 2:20 PM
To: Planning Mail Box <[email protected]>; Dan Quirk <[email protected]>; Terry Gaasterland <[email protected]>; John Spelich <[email protected]>; Tracy Martinez <[email protected]>; Ashley Jones <[email protected]>
Cc: Janet Wilson <[email protected]>
Subject: Chapter 23.51 - TSVS - Proposed changes - Comments regarding ‘City Tree,’ ‘Parkway,’ and right-of-way responsibilities
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 Planning and City Councilmembers,
Chapter 23.51 addresses obstruction and restoration of Scenic Views and Sunlight, and “Trees” appears in the title only because they are the primary cause of an obstruction (and not because the chapter governs Trees).
The proposed changes to 23.51.020 include adding a definition for “City Tree”, but removing the definition of “Tree”.
(E) City Tree shall mean any Tree planted, installed, owned, and/or maintained by the City, which is located in, within or on a City park, Parkway, street, median, or other property owned by the City.
For purposes of this Chapter and consistent with Section 23.51.030 of this Chapter, the term “City Tree” does not include any Tree located within the public right-of-way between the improved street edge and the property boundary of a private lot.
(S) Tree shall mean any perennial plant growing on public or private property, having a selfsupporting woody main stem or trunk with the potential to obstruct Scenic Views or Sunlight, including but not limited to Trees, shrubs, hedges, and bushes or any plant material planted or growing in a dense continuous line so as to form a thicket barrier or naturally grown fence.
References to "Tree" shall include the plural.
This new definition of “City Tree” effectively places every tree into one of three categories:
1. Private Tree – owned and maintained by the property owner
2. Public Right-of-Way Tree – located on City property inside the public right-of-way, but maintained by the [adjacent] property owner
3. City Tree – located on City property outside the public right-of-way, and maintained by the City
100 October 6, 2025 Item 8
2 The objective seems to be that the Applicant follows the normal TSVS application process (including associated fees) for both a Private Tree and a Public Right-of-Way Tree, but when a City Tree is causing the obstruction, the ordinance aims to streamline the process. By defining Public Right-of-Way Trees as a subset of City Trees, the ordinance calls out that it is the adjacent property owner (and not the City) who is responsible for maintenance when there is an obstruction under 23.51.
In Del Mar, many homeowners maintain their adjacent right-of-way, but others do not. Under this update, if trees in a property owner’s adjacent right-of-way cause an obstruction, the owner is responsible whether they maintain the trees or even realize the obligation. This issue was raised at the last City Council meeting regarding properties backing onto Jimmy Durante, with many others likely in similar situations. Once clarified, responsibility for obstructions caused by right-of-way trees will be explicitly assigned, a goal behind these changes.
This raises two important questions: Shouldn’t homeowners be formally notified of this new responsibility? And conversely, who is responsible for the public right-of-way when there is no obstruction?
California State Streets and Highways Code section 5610 states that landowners are responsible for maintaining sidewalks in safe and unobstructed condition, even if the sidewalk is publicly owned. This implies landscaping in the right-of-way is also the homeowner's responsibility.
Placing the definitions of ‘City Tree’ and ‘Public Right-of-Way Tree’ in 23.50 Trees would allow 23.51 to remain focused on obstruction, while making clear that homeowners are responsible for maintaining adjacent rights-of-way. Either way, this represents a significant change for all residents.
I hope this helps.
Janet Wilson
619.733.1428
The term “Public Right-of-Way Tree” is awkward. Many municipal codes use “Street Tree” or “Parkway Tree” to describe trees in the right-of-way maintained by adjacent property owners.
City Council Policy 110 addresses private encroachments into city rights-of-way, stating:
“There are numerous circumstances in Del Mar where an improved (paved) section of a City rightof-way is narrower than the width of the right-of-way itself. This results in an area of unimproved right-of-way adjacent to private property. In many cases, the owner of the adjacent property, or designee, proposes to install landscaping and other landscape-related improvements in the unimproved portion of the right-of-way. This has the beneficial effect of beautifying the area adjacent to the paved roadway, without the City having to bear the costs for installing or maintaining the improvements. These are generally considered to be an appropriate use of a rightof-way but still subject to review under the Encroachment Permit process.” https://www.delmar.ca.us/DocumentCenter/View/1956/110-Private-Encroachments-Into-CityRights-of-Way-PDF
Del Mar Chapter 23.28 – Encroachment Permits
C. Encroachment shall mean development or use of any portion of a City Right-of-Way or Easement in a manner other than its intended use. Encroachment shall include, but not be limited to, any of the following:
101 October 6, 2025 Item 8
3 2. Planting of any tree, shrub, grass or other growing thing within a City Right-of-Way or Easement;
https://library.municode.com/ca/del_mar/codes/municipal_code?nodeId=TIT23BUCO_CH23.28E NPE
Cut-and-paste definitions are maintenance-intensive. Therefore, if 23.51 does require a definition of City Tree, it should be
(E) City Tree - see 23.50.020 City Tree
102 October 6, 2025 Item 8