Many residents called the plantings and public access created "beyond incredible."

A Del Mar homeowner whose lush greenery has overtaken an unimproved alley can continue. Such public streets are shown on maps but remain unimproved — or are intended to.

The city council on Monday voted 3-2 to allow Tanya Young and Michael McManus to keep an encroachment permit, which was first granted in 1988 for a driveway, retaining walls and landscaping installed in the previous decade in the alley beside their home. 

"The reason for these paper alleys is the ability to have space between properties," said Councilmember Dave Druker, who voted no, along with Councilmember Dan Quirk. 

Staff recommended denial of the permit for violating code and private encroachments into city rights of way, which span about 70 feet of the alley west and north of the improvements previously approved. 

Aside from an impenetrable thicket of arundo, council members who walked the area around 919 Klish Way (several long blocks east of Camino Del Mar and Tenth) described a welcoming oasis in the public right of way.

In August, 2022, the city issued a violation after receiving a complaint about hedges, rose bushes, ornamental plants, and private patios that had cropped up.

So did many residents who called the plantings and public access created "beyond incredible." It was taking care of the space, curbing erosion and beautifying the alley, they said, anything but encroachment.

That's not how neighbor John McNulty, who wants the vegetation and other additions removed, sees it. In a letter to the city, he claimed the McManuses  deliberately set out to turn the public alley into their private backyard.

"The applicants have illegally taken over the alley as their own yard," McNulty said. They planted "a row of 20-40 foot tall trees on our property line"; graded the alley; installed retaining walls, drainage and "planter beds of all types." 

They even put up outdoor dining tables and chairs, complete with overhead café lighting, in two patio seating areas they created in the alley.

According to a staff report, the McManuses claimed the alley was closed in 1975 when in fact it has not been closed or vacated. However, a different unimproved alley two homes to the east was officially closed to vehicles that year.

McNulty said there are two distinct problem areas. The first is the southerly 100 feet of the alley where the McManuses were granted an encroachment permit limited to private retaining walls, landscaping, walkway and driveway pavement. 

Nevertheless, they "planted a row of trees right on our property line in the public alleyway even though it was clearly forbidden." They weren't allowed to block public use of the alley — "which includes blocking us access from our own property of course, not just from the end of the alley." 

A second area where the McManuses have "egregiously violated the rights in the public alleyway" is north of the section in the 1998 permit, where they were never granted rights. This is where the garden walls, irrigation, drainage, and outdoor dining went in. 

In August, 2022, the city issued a violation after receiving a complaint about hedges, rose bushes, ornamental plants, and private patios that had cropped up without city approval.

The McManuses sought a permit to retain the new encroachments, but then offered to remove the foliage and patios to abate the violation. The city agreed, with some added conditions, only to have the applicants file an appeal of the approval.

In the final iteration, the McManuses wanted to revise their application to retain all the encroachments they had agreed to remove.

For approval, the city council had to make several findings: that the changes would not endanger public safety; interfere with a city right of way; impact community welfare; or convert a significant slice of public property to private use.

The council agreed to height limits on the hedges and thinning some of the greenery, as well as going out to do a tree count.

As debates over private views, climate action and the benefits of trees keep coming, the city is also embarking on a two-phase update of its decades-old Trees, Scenic Views and Sunlight Ordinance.