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Set Backs: Do They Matter?
Dwight Worden | Del Mar City Council Member

No room for trash trucks on Avenida Primavera when lined with construction vehicles. Photo Art Olson.
Click on image to enlarge.

The answer to that simple question is an unequivocal “maybe.” Sometimes encroachments contribute positively to our town, and sometimes, alas, they detract. Let’s take a look at the topic and try to make sense of it all.

First, for our purposes an “encroachment” is private use or obstruction penetrating into public street property. Some facts to note:

(1) The street rights of way in Del Mar, in most cases, are wider than the paved portion of the street. So, in our residential neighborhoods there is usually an unpaved strip on both sides of the pavement that remains in public ownership.

(2) Private owners can never acquire prescriptive or adverse possession rights to claim ownership of such public property. This legal doctrine is only available as to private property, so no matter how long an encroachment exists in the right of way, permitted or not, it never acquires a private legal ownership interest.

(3) An encroachment can be authorized to intrude on public property by receipt of an encroachment permit from the city, but these are always subject to a right of revocation in favor of the city.

A common example of when encroachments benefit our town is the practice of some home owners landscaping, creating attractive pedestrian walkways, and caring for portions of the unpaved strip between the street pavement and their property line. These beautification projects on public property, paid at private expense, can often benefit the community. The proper way to do this, however, is by obtaining an encroachment permit from the city. Those who just do the work are subject to having it removed without notice, so best to get that permit.
A common example of an encroachment that is detrimental is where private owners extend patios, walkways, fences, and the like into the right of way in a manner that constrains vehicle (including fire trucks and other emergency vehicles) or pedestrian traffic, impairs sight lines, adds inappropriate bulk, is poorly constructed or maintained, causes damaging runoff, and so on. Likewise, encroachments can be a problem where they create a false impression of private ownership, contribute to a feeling of crowding, where they impede parking, or create safety hazards.

There are also circumstances where an encroachment into a right of way can be seen as neutral—neither beneficial nor detrimental. For example, there are many “paper” alleys in Del Mar that go nowhere. When these are landscaped, for example, behind a house, there may be benefit to the homeowner but the impact to the community is often neutral.

The city divides encroachment permits into categories of ”major” and “minor” with the process being similar—fill out and file an application, city staff and department review, conditions attached, and final decision by the city manager (minor encroachments) or city council (major encroachments). In reviewing applications the city looks at a number of factors: Will the encroachment impair or impede vehicle, including emergency vehicle, access? Will it affect pedestrian use? Is it properly designed and engineered? Is it attractive? Will it be maintained? Will it create a safety risk, and so. In October of this year the city council adopted a policy on private encroachments (policy 110) clarifying many of these topics. You can find the policy here:

www.delmar.ca.us/DocumentCenter/Home/View/1956.

And, the applicant’s guide to applying for an encroachment permit can be found here: www.delmar.ca.us/documentcenter/view/61 .

Take a look around next time you walk your neighborhood, remembering that the public right of way is wider than the pavement--are there encroachments along your neighborhood streets? Are they beneficial or detrimental? If beneficial, maybe let the owner know you like what you see. If detrimental, by all means let the city staff know and they will look into it. All else fails—let me know! dworden@roadrunner.com .

 

 

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