Cities Community Del Mar

Appeal denied in case of blocked view

DEL MAR — A property owner was denied an appeal of a Planning Commission decision that vegetation on property at 110 Stratford Court does not unreasonably block the ocean view from her primary living area.

Shirli Weiss said her only option following City Council’s 2-2 vote at the July 17 meeting is to seek legal action.

“You’ve got an ordinance that I think is pretty clear in terms of enforcing a view that you had when you purchased your property, and yet they won’t enforce it,” she said. “I don’t know what the reason is for that. They really kind of left me no choice at this point but to take it to the Superior Court.”

Weiss owns the unit at 116 Spinnaker Court in the Del Mar Woods condominium complex adjacent to property owned by the Staver family.

But concerns about the blue-gum eucalyptus trees started long before she bought the property in November 2014.

Some eucalyptus trees existed when Ralph and Marian Staver bought the 5.8-acre lot on Stratford Court lot in 1950. Others were planted in the early 1970s when Del Mar Woods was built on adjacent land to the north.

In 2003, a group of Del Mar Woods owners submitted an application under the newly created Trees, Scenic Views and Sunlight Ordinance, which allows the city to direct a property owner to restore scenic views lost by tree and vegetation growth on another property.

A compromise was reached that included trimming the trees twice a year without sacrificing the Stavers’ privacy, so the application was closed.

In 2012, dissatisfied with the results of the trimming, another application was filed. Condo owners said the rapid-growth trees blocked their views in between trimmings. A mediation attempt failed.

The Planning Commission ultimately concluded views of four of seven condominium owners were unreasonably blocked by a row of the eucalyptus trees.

Opposed to restorative action that included a tree-trimming plan later adopted by the commission, those owners filed an appeal request, as did one owner whose view was determined to not be unreasonably blocked.

City Council denied the appeal.

While all that was occurring, Weiss filed a separate view blockage application and no trimming occurred for a year beginning in November 2015.

In a 3-2 vote in April 2017, the Planning Commission determined her view was not unreasonably blocked and was essentially the same as when she first occupied the condo in January 2015.

She said the discussion at the appeal, which was granted last month, was puzzling.

“The conversation was all over the place,” she said. “The discussion that they had reflected a disagreement as to how the ordinance was to be properly interpreted. I didn’t feel that they understood the ordinance themselves.”

Councilwoman Ellie Haviland, who as a Planning Commission member was part of that panel’s early decisions on the trees, said she could not make a finding that the view is unreasonably obstructed.

“The Weiss view consists of sometimes whitewater view and ocean view surrounded by fast-growing vegetation out of one window,” she said. “I don’t feel that this has changed since the property has been purchased.”

Sherryl Parks agreed, but David Druker and Dwight Worden did not. During part of the discussion the two councilmen focused on when the blockage became unreasonable — at the time the application was filed or when the Planning Commission hearing was held.

Weiss said in her opinion that discussion was irrelevant. She simply wanted the view she said she had when she bought the unit to be restored and for the rapid-growing vegetation to be trimmed four times a year to maintain her view.

She also said given the nearly $4,000 cost to appear before the Planning Commission, it should seem obvious that she wouldn’t have filed an application if there wasn’t view blockage.

“I just want to protect my small piece of heaven here,” she said. “I’m happy to pay for it.”

Christopher Garrett, representing the Stavers, said the vegetation Weiss is referring to is already subject to trimming based on their agreement with other condominium owners.

He said her appeal is an attempt to overturn and rehear a prior decision, upheld by City Council, and doing so would penalize their willingness to compromise.

“That decision is binding,” he said, adding that his clients gave up their right to appeal when they agreed to compromise.

Additionally, he said trimming more frequently than twice a year would create views that never existed before.

Weiss said she would prefer to not take legal action.

“I love Del Mar,” she said. “I really, really wanted to get this straightened out at the City Council level. …  I wish they would have granted me some relief but they didn’t. Now that’s the only remedy that’s left.”

Mayor Terry Sinnott was on vacation but could not have voted to break the tie either way because he owns property within 500 feet of Del Mar Woods.

Weiss, an attorney, said she would have waived that conflict. City Attorney Leslie Devaney said conflicts of interest for council members cannot legally be waived.

“If there is a conflict, it is a conflict for the purposes of all parties and the public and not just one party,” she said.

Weiss said she plans to file a writ with the Superior Court.

“Exactly what specific action we’re going to ask the Superior Court to take is still being worked out,” she said. “But I do think it’s important to get some clarity on the ordinance because I think the Planning Commission is not enforcing the ordinance and … City Council seems to be not in agreement as to how to enforce the ordinance or what steps to take to analyze the ordinance.”