SOLANA BEACH — After 15 years, three community workshops, two public surveys, a twice re-established/once reappointed ad hoc committee and countless hours of meetings, interviews and research, City Council opted against establishing an ordinance to resolve conflicts caused when vegetation blocks views.
“I did not see any tremendous interest in legislating a solution to this problem,” Mayor Dave Roberts said. “In my humble opinion, it doesn’t work for this issue.”
Instead, council members directed staff to complete and distribute a Good Neighbor Policy guidebook that offers resources, information and creative suggestions for conflict resolution. The guide, which should be out in early December, lists some potential problems caused by certain trees and other vegetation. It also features mediation information, pruning techniques, tips on hiring an arborist, Web sites and an explanation of applicable state laws.
Roberts and Councilman Mike Nichols, who made up the most recent view and vegetation ad hoc committee, said they recommended the good neighbor guide over legislation primarily because of a lack of community support for an ordinance and the existence of state laws to address the problem.
In September 1993, the San Diego Association of Governments conducted a survey that indicated a majority of residents wanted protection measures. According to another survey about 10 years later, 60 percent of respondents wanted an ordinance, however, 58 percent felt the issue should be handled neighbor-to-neighbor with little city involvement. Most council members agree the second survey was flawed.
“I have not seen the community outpouring supporting (an ordinance),” Roberts said. “The SANDAG survey didn’t say what the consequences were. The workshops did.”
“The survey didn’t allow people to delve into the consequences and ramifications of what would occur if an ordinance were put in place,” Councilwoman Lesa Heebner said. Nichols said those consequences could include lawsuits. He also noted about half of the 20-question survey had nothing to do with the view blockage from vegetation.
While reviewing ordinances in other cities, Roberts and Nichols learned about existing state laws that address the issue.
According to the spite fence statute, property owners cannot construct a fence or row of trees higher than 10 feet out of malice for the purpose of annoyance.
The Solar Shade Control Act protects solar collectors by making it unlawful to plant trees or allow them to grow so they will cast a shadow on the collector. The shadow must be a certain dimension, and there is a limited exception for pre-existing trees.
Roberts said about 90 percent of the Solana Beach cases involve spite fences. “This council is never going to be able to legislate them,” he said.
“There are means in place to deal with that,” Nichols said. Although the legislation may be difficult to pursue, “it’s out there and it’s available,” he said.
In November 2007, the city held a workshop to garner public input on the framework for a draft ordinance. A presentation from the workshop was available on the city Web site for review and comment for about three months. Of the 40 residents who provided feedback, 23 opposed an ordinance.
“We, quite honestly, thought we would get more responses, but we didn’t,” Nichols said.
Feedback on the decision not to create an ordinance was mixed. Brett Gobar thanked the ad hoc committee “for the conclusion that some kind of ordinance for foliage as it relates to view will not proceed further.”
Steven Barklis said an ordinance “could make some sense, but when you get into the details of it, that’s when it becomes difficult to envision how it could really work.”
“Wherever there’s somebody who gains from it, there’s a loser in the equation,” Barklis said. Giving property owners the right to have a view across their neighbors’ property would mean every other neighbor would have the same right across their property. “I think that’s the thing that complicates it in Solana Beach,” he said.
Bruce Berend was disappointed with the outcome. “The fact that Solana Beach has a view assessment ordinance and a committee and a process that works … it kind of surprises me that you don’t also see the need for a complementary view and vegetation ordinance to complete the picture,” Berend said. “To support the one type of ordinance and not the other is inconsistent. I have a little trouble understanding that.”
Councilman Tom Campbell agreed. “When the structural ordinance was first adopted the opponents said it was going to result in litigation, it was going to create controversies, it was going to cost a lot of money (and) it wasn’t going to work,” Campbell said. “It has probably been one of the best successes Solana Beach has had.” Although any ordinance has the potential to create problems, “that doesn’t mean you don’t try and work on it,” Campbell said.
“I just think that if we put all this time and effort into providing for a process to protect views from structural development, not to consider doing the same thing on a vegetation basis is inappropriate. … We might as well not have a structural view ordinance if we’re not going to do the same thing with vegetation.”
Councilwoman Lesa Heebner said she felt the same way when she began serving on the original view and vegetation ad hoc committee with Campbell. “But structures don’t grow,” Heebner said. “My original thoughts have changed.”
Campbell called the spite fence law “an unbelievably high hurdle.” He said, according to some attorneys, a person would need a tape recording of the neighbor who planted the trees saying it was done with malice. “That spite fence rule is going to do nothing in these situations unless the person that grew the vegetation is stupid and opened their mouth,” Campbell said.
Council members did agree most Solana Beach residents manage to work out their problems by simply talking to their neighbors. “It’s just a handful of folks, for one reason or another, who can’t seem to get along,” Nichols said.
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