David E. Hickey
Joshua A. Smisko
Frank Mickadeit
HICKEY & ASSOCIATES, P.C.
ATTORN EYS AT LAW
MISSION CORP ORATE PLAZA
27261 LAS RAMBLA S, SUITE 120
MISSION VIEJO, CALIFORNIA 92691
TELEPHONE (949) 614-1550
FACSIMILE (949) 748-3990
BroadmoorSanClemente/CityofSCFurtherReply/020525
February 5, 2025
City of San Clemente
City Council
c/o Adam Atamian
910 Calle Negocio
San Clemente CA 92673
VIA U.S. MAIL &
EMAIL
[email protected]
Re: Broadmoor San Clemente Community Association
Subject: Tree Height Violation Hearing
Dear Members of the City Council:
As you are aware, this firm is legal counsel for the Broadmoor San Clemente Community Association (“Association”). We are writing to you regarding the recent Public Hearings regarding the tree height restriction within the Association’s CC&Rs and the Association’s enforcement of that restriction and the Association’s plan moving forward.
The Association’s Board of Directors has been deliberating on a path forward. The Board has elected to reach out to each Calle Felicidad owner directly and offer them the opportunity to send a complaint to the Association’s management company if a downslope owner on Calle Delicada has a tree in violation of the height limit, unreasonably impacting the Calle Felicidad owner’s view. Once Compass Property Management receives this formal complaint, they will investigate it and determine the next step forward, despite these Calle Felicidad owners not being dues paying members of the Association.
If the complaint is confirmed, then Compass Property Management will initiate violation procedures against that homeowner on Calle Delicada. Despite the comments made by the Calle Felicidad owners at the hearings, and comments from the recent City Council meeting, the Association cannot legally take immediate action (or go on to private property and trim or remove these trees). Under the violation enforcement policy, the offending Calle Delicada owner will first be sent a demand letter to cure the violation.
After 30 days has passed, if the violation has not been satisfactorily corrected, that homeowner will receive another demand letter and invitation to a violation hearing, where a fine can be levied by the Board. If this step has not resulted in the tree being trimmed or removed, the next step under California law, is for the Association to offer Internal Dispute Resolution (“IDR”) as required under Civil Code Sections 5910 and 5915.
www.HickeyAssociates.net
Attachment 5
City of San Clemente
February 5, 2025
BroadmoorSanClemente/CityofSCFurtherReply/020525
IDR is a formal meeting with the homeowner and Board representative to discuss the issues and attempt to obtain a resolution without requiring further legal action. The IDR meeting is usually set within 30 days. If a resolution is reached, it is memorialized and should be acted upon.
If the owner ignores the IDR offer, or no resolution is reached, then the Association must legally offer the owner to participate in Alternative Dispute Resolution (“ADR”).
ADR is essentially a formal mediation or arbitration hearing with the parties and a neutral and the costs are shared equally. Pursuant to the Civil Code, the Association may not file an "enforcement action" in superior court unless the parties have first "endeavored" to submit their dispute to ADR pursuant to Civil Code Section 5930(a). ADR hearings are usually set within 90 days. If the owner refuses to participate in ADR, and/or no resolution is otherwise reached, then the Association may proceed with enforcement litigation against that owner. Litigation may take anywhere from 12 to 24 months or longer to complete.
The City Council and Calle Felicidad owners are greatly mistaken if they believe the Association can just go and cut down a tree on private property in the next 30 days. Further, if the City Council should elect to disregard the Association’s enforcement procedures required by statute, and its timelines and “assign” the enforcement “right” to the owners of Calle Felicidad, or act to enforce it themselves, either party must follow the same rules, procedures and California law that is required of the Association as outlined in the CC&Rs, Art. XII, “…In connection with any such performance by the City, it may exercise any of the rights and powers granted to the Association under this Declaration.” The Association has no right to enter private property and cut down allegedly offending trees.
In summary, the Board has “heard” the City Council and reached out to each owner on Calle Felicidad and given them an opportunity to file a complaint against a Calle Delicada owner, as if they were dues paying members of the Association, which they are not. If a complaint is determined to be supported, the Board will/has begun enforcement measures against the Calle Delicada owner(s). As such, the City Council cannot reasonably determine that the Association has failed to perform its duties under the Declaration. Respectfully, this matter should be deemed closed by the City Council or at a minimum continued out for at least 6-8 months to allow the process to unfold.
Very truly yours,
HICKEY & ASSOCIATES, P.C.
Joshua A. Smisko, Esq.
JAS:rf
cc: Board of Directors,
Broadmoor San Clemente Community Association