Court decision made on a City of Del Mar code issue

By Kristina Houck

A recent court decision clarified the city’s code on the right to continue a structural nonconformity in Del Mar.

In a decision published March 14, the Court of Appeal upheld Del Mar’s decision to grant a variance to resident Jon Scurlock, allowing him to build a house that does not comply with the 20-foot front yard setback requirement in the city’s municipal code.

Built several decades ago, a two-story house currently sits on the hillside lot on Seaview Avenue. Scurlock plans to build a new house on the footprint of the old house, which is located 9 to 11 feet from the street.

“This case is a good outcome for older cities such as Del Mar because it establishes some clarification on the law with respect to existing nonconforming residences and the ability to obtain variances where appropriate with respect to new construction and things of that nature,” said Bill Pate of Stutz, Artiano Shinoff & Holtz, the firm representing the city.

Del Mar’s Design Review Board approved Scurlock’s development application in June 2010, concluding that constructing the new house on the existing building pad instead of moving it westward would minimize adverse impacts to steep slopes, minimize land disturbance from grading the site, and minimize the bulk and mass of the retaining walls. The Del Mar Planning Commission conditionally approved the variance in September 2010, which Stephen and Lucy Eskeland, along with residents of three other homes in the neighborhood, appealed to the City Council.

The Eskelands brought the matter to court after the council on Oct. 18, 2010 declined to set the appeal for a de novo public hearing. The San Diego Superior Court denied the petition, which the Court of Appeal upheld.

“It leaves the discretion where it should — which is with the design review board, the planning commission and the council to decide whether or not a variance should be granted under the circumstances,” Pate said. “In this case, those three bodies, along with the San Diego Superior Court and the Court of Appeal, all agreed that a variance was appropriate.”

The plaintiffs, however, argue that the ruling could make it easier for developers to not just continue, but expand nonconforming structures in Del Mar.

“It establishes — for essentially all of California — that a variance can overcome a prohibition on expanding nonconformities,” said Todd Cardiff, who represented the Eskelands. “You can always seek a variance to get over that hurdle. That’s something that’s new for Del Mar.”

In a written statement, Stephen Eskeland said the decision sets “horrible precedent” for the city and the state.

“It blows a hole in our community plan,” he said. “What this means is that through the variance process, redevelopment will be able to routinely increase the degree of nonconformity. This will result in structural overcrowding, possible loss of significant public views and private views, and invasion of privacy, which is what happened to us.”

The Eskelands are currently reviewing the decision and considering their options, Cardiff said. They have 40 days from the publication of the decision to seek Supreme Court review.