DEL MAR — After multiple amendments and meetings over the past year, the Del Mar City Council has officially updated its process to address complaints from residents about neighbors’ trees blocking scenic views and sunlight.
Proposed changes to the regulations, known as the Trees, Scenic Views, and Sunlight Ordinance, or TSVS, have come back multiple times through amendments to the Planning Commission and City Council. The council discussed amendments in July, on Oct. 20, and most recently on Nov. 3.
The most recent meeting resulted in a final agreement, with a 3-0 council vote to introduce the new TSVS ordinance for its first reading. Councilmember Dan Quirk was absent and did not participate in the vote.
City leaders noted that the ordinance can constantly be reviewed for further amendments if needed, but it was essential to enact these initial changes on the books.
“We put a lot of time into this. Nothing’s perfect, and this is pretty good,” said Councilmember John Spelich, thanking city staff and the public for all of their work. The ordinance provides a recourse for residents when a neighboring tree or other plant blocks scenic views or sunlight from their primary living area, defined as the main gathering room of the primary residence. It also offers remedies for blocking sunlight to rooftop solar panels.
The city’s goals for the new ordinance were to streamline and make the TSVS process more objective, ensure equitable cost allocation, reduce the burden on city resources, and establish more precise criteria for what qualifies as an unreasonable view blockage.
“There are a lot of reasons for doing this update. One of them is the cost,” Principal Planner Matt Bator said in October.
At the suggestion of the Planning Commission, the City Council also decided not to implement height limits for hedges at this time, instead opting to revisit the matter at a later date.
New regulations
A resident alleging that a neighbor’s tree is obstructing their view must submit various materials to the city, including a tree survey by a certified arborist and photos showing what their view looked like from their primary living area prior to the obstruction.
The updated ordinance clarifies that “trees” include all perennial plants growing on public or private property, either in the ground or an above-ground pot or container, with a woody main stem or trunk. This also includes vegetation such as shrubs, hedges, and bushes.
The updated ordinance creates more incentives for neighbors to resolve issues and disagreements through mediation. While parties could previously forgo mediation, the applicant must now submit documentation to the city showing that they have attempted to reach out to the tree owner to offer mediation before the city can intervene.
Tree owners will also be required to make a good-faith effort to participate in mediation, or risk incurring the entire restoration cost themselves.
“The majority of the 30-odd applications over almost 24 years that have gone to hearing, which is probably 10 or 12 now, the majority of them did not engage in the mediation,” Bator said. “The rule now is if you don’t participate as a tree owner in [those] early good-neighbor discussions, which does include mediation, you would be paying for 100% of the restoration if it’s found to be an unreasonable blockage.”
After the complete application is submitted, the city will send a notice to the tree owner within 30 days. The Planning Commission will then determine at a hearing whether there is an unreasonable blockage, which may require restorative action work, such as tree trimming.
The Planning Commission will determine whether a view is unreasonably obstructed by setting a maximum allowable scenic view obstruction percentage, based on the size of the view, and whether the view is of white water, blue water, or horizon/back country.
To find that a view is unreasonable, the subject tree must be within 300 feet of the applicant’s property, and photographic evidence of the scenic view before the obstruction (taken either after the property was purchased or 10 years before the submittal date of the application) must show that the scenic view has been reduced by more than the maximum allowed percentage.
While the applicant was previously required to pay for all initial restorative work for the owner’s tree, the new ordinance requires the costs for restorative work and the initial tree survey to be split evenly between the applicant and the tree owner.
In addition, the tree owner, rather than the applicant, will be required to pay for all ongoing tree maintenance necessary to maintain the view, as specified by the Planning Commission. Several residents praised this change, noting that it was unfair to put the cost burden for maintenance on the person whose view was being blocked.
“This subsection corrects a significant injustice baked into the current ordinance,” resident Shirli Weiss wrote in an October public comment.
Some argued that this rule should also apply to all future maintenance, including for trees determined to be unreasonably obstructing a view in past decisions by the Planning Commission.
A group of residents living near the Del Mar Woods condominiums has stated that they have been paying nearly $7,000 per year for around a decade for the maintenance of trees on the property, following the discovery that the trees were unreasonably blocking their views. They requested that the tree owner, Torrey Pacific Corporation, be required to pay for all future maintenance under the new ordinance.
“There are six of us that pay, and it is a hardship for some of those people. It can be an ordeal,” said resident Lori Rittman. “We are paying for the Torrey Pacific Corporation to take care of a fire hazard that they should take care of themselves.”
While the council discussed this as a possibility, city staff warned that they cannot retroactively apply the new rules to a previous decision made under the old ordinance.
Even with the ordinance amendments, the most considerable upfront cost will still be borne by the applicant who is alleging obstruction. The applications for TSVS determination and remediation cost $3,355 each, which the city stated is necessary to cover staff time.
During the ordinance revision, several residents shared frustration about the high fees and argued that they should be lowered.
City staff said they will track the time spent on TSVS applications over the next year to see if the more streamlined process results in less required staff time, which could serve as a basis for reducing the fee.
Sunlight
When it comes to sunlight obstruction, the TSVS application process is largely similar but has some key differences. The subject tree must be within 30 feet of the applicant’s property, and the applicant must demonstrate the amount and duration of sunlight being obstructed using a shadow study or other method.
To be considered an unreasonable obstruction, the subject tree must cast shadows greater than 50% of the total window glazing of the primary living area at any time between 10 a.m. and 2 p.m.
In October, the council considered removing the primary living area requirement for sunlight views, instead allowing residents to argue that their sunlight was being obstructed in any area of the residence.
While some residents and council members argued that sunlight should be protected in all areas of the home, others contended that this change would result in many more trees being challenged.
Bator said people may also try to game the system to gain better views.
“I think you’re gonna invite folks who are trying to get views from all parts of their house, to try to remove vegetation for sunlight reasons from bedrooms and other parts of the house when the real intent is to get views,” Bator said.
While Mayor Terry Gaasterland noted that a home could have different primary living areas for sunlight and for scenic views, she eventually agreed to have them in the same location.
Bator noted that since 2002, there have been no TSVS applications related to sunlight being blocked in the city.
The ordinance also maintains that the Planning Commission may require any restorative action or maintenance to be recorded in a covenant against the deed for the property where the subject tree is located. This covenant may also run with the property.
