America’s form of government does not create nor permit a special class of citizens who are immune from legal accountability. It’s clear from Phil Trubey’s recent article in the Post, “How Not to Win Friends and Influence People,” that he and the few others involved seem to believe that the Rule of Law does not apply to the Rancho Santa Fe Association and its Board upon which he currently sits.
RSFA members are required to follow our governing documents, go before the Art Jury, and comply with San Diego County ordinances when dealing with a construction project. How can the RSFA enforce rules on members when it knowingly and illegally refuses to play by them itself?
At issue is the unpermitted, illegal grading of about 12 acres on the RSFA Golf Course. The RSFA Golf Club is not a legal entity. It neither owns the land nor the buildings that comprise the golf course area; these are owned, in undivided interests, by all RSFA members. (See California Civil Code, Sec. 4500 and RSFA Articles of Incorporation, Art. 6 (d).)
It was announced in October 2020 that construction of the golf course remodel would begin in April 2021. However, the permit process had not begun. From late 2020 to the present, the majority of the RSFA Board did not disclose to certain Board members and the membership that they were in such a rush to begin the remodel, that they knowingly, willfully and illegally failed to obtain a County grading permit.
The 180 Degree Difference an Election Makes
Before being elected to the RSFA Board, as former editor of the RSF Post, Mr. Trubey wrote in July 2021, “Association Violating Own Rules in Golf Course Renovation,” which included photos of huge dust clouds, work being done outside allowable working hours and huge rolls of dead sod being hauled away.
In that same issue, Mr. Trubey also penned, “RSFA July Board: Like Pulling Teeth,” where he decried what homeowners were relaying to him about the many trees being cut down on the course: “Wait, back up a moment! I knew that the golf course master plan had all of one tree identified for removal on holes 2 through 8. How the heck could 26 others be removed?…I walked the seven eastern holes (holes 2 through 8) that were under active construction, and wow, what an eye opener! Trees were indeed being cut down…Trees that provided trail walkers with shade…golfers and tee boxes with shade. Trees that enhanced the view of the many, many properties that line and can see the golf course. Even trees that were important for golf shot strategy were removed.”
In the same article detailing the July 2021 Board Meeting, Mr. Trubey wrote that when one of the Forest Health and Preservation Committee members was finally able to speak during member input (not during the tree removal agenda item) “He made the point that the golf course master plan had only six tree removals for the full 18 holes and that these had come after an arborist review. If an arborist then had recommended six removals, why did a different arborist during construction recommend many more be removed?…”
Believing the RSFA had lost the trust of much of the community, whose involvement was now critical, [Former Director] “Lemarié proposed a motion, seconded by Lorraine Kent, that a small committee composed of an independent arborist (not one that would be cutting down the trees, as was currently the case), [newly hired director of agronomy] Tom Huesgen, staff member Arnold Keene, and a member of the Forest committee be charged with approving future tree removals. Newly installed director Dan Comstock forcefully opposed this idea on the grounds that this would slow things down too much…Directors Greg Gruzdowich and Rick Sapp also opposed the motion saying that Forest committee members should not be involved, citing lack of expertise… Sapp got argumentative and said that random citizens shouldn’t be part of the decision-making process.”
“Slap in the Face”
Mr. Trubey went on to observe that Tom Huesgen “showed 15+ pictures of downed trees and explained the reason why they were cut down…These are not great reasons to get rid of trees…The Art Jury, upon approving the golf course remodel plan made sure to lay strict criteria for the removal of trees, and none of the criteria Huesgen used above were on that list.”
Sounding shocked by what he witnessed during the meeting, Mr. Trubey wrote, “The fact that it took an hour of back and forth debate to agree to such an inoffensive resolution is astounding…Sapp, Gruzdowich and Comstock simply didn’t address or give credence to Lemarié and Kent’s concerns which were member complaints. Not allowing a Forest committee member to be part of the process was a slap in the face of not only these volunteers but of all community members…[Newly-elected President] Bill Weber’s opening remarks were to praise community volunteers. I say this is ironic since the majority of the board didn’t want those same volunteers to actually have any involvement regarding tree removal….”
An issue that Mr. Trubey noticed was critical yet missing from the Board’s discussion of tree removals was tree planting: “During the last golf course master plan in 2014, it was agreed that 26 new Eucalyptus trees would be planted on the front nine. According to [a Forest Health member], none were. And the current master plan only shows a small handful of new trees to be planted…”
Official Board Position?
After becoming an RSFA Director in July 2022, Mr. Trubey continued to serve as RSF Post editor until January of 2023 when he announced in “Please Welcome (Back) Our New Editor” his departure from that position and explained the conflict of interest in trying to serve readers and the Board simultaneously: “As a Board member, I am duty bound to give a positive spin on anything the Association does and be a cheerleader for all our initiatives…I might still write occasional articles about the Association, but it’ll be as a Board member, espousing the Board’s view on matters.” Does Director Trubey’s article on the SDPG represent the official position of the Board?
“The Rancho Santa Fe Association Standards of Conduct and Ethics Code For Volunteer Board Members, Officers, and Committee Members” has a number of sections that are relevant here, but especially:
“6. …No Volunteer Leader shall engage in any writing, publishing, or speech that defames any other Volunteer Leader, an employee, owner or a resident of the community.” In addition to many inaccuracies in Mr. Trubey’s article, it most certainly included “…speech that defames” specific RSFA members, as well as the entire San Dieguito Planning Group (SDPG).
The SDPG is one of many San Diego County community planning groups whose purpose is to advise the Department of Planning & Development Services, the Zoning Administrator, the Planning Commission and the Board of Supervisors on discretionary projects and on planning and land-use matters important to their community.
The SDPG consists of publicly elected volunteers from within the SDPG’s geographic boundaries, including members of the RSFA. The two longest serving members of the SDPG are not the members Mr. Trubey specified, and the terms are for four years, not the two Mr. Trubey stated. This group spends countless hours year-in and year-out researching, making inspections and recommendations to the County.
Unless and Until
When the SDPG found out about the illegal grading, it held a Special Meeting on Jan. 18, 2023, to ask the County to extend the comment period, in order to hold a public hearing. It was not, as Mr. Trubey stated “an emergency zoom meeting to attempt to block the permit.” The SDPG asked for the time extension to allow for the usual 30-day public comment period. The County granted its request and a public hearing was held on Feb. 9, 2023. Contrary to what Mr. Trubey indicated, the SDPG’s “Motion to Recommend Permit Denial” is incorrect. The SDPG’s Motion reads as follows:
“San Dieguito Community Planning Group recommends denial of PDS2021-LDGRMJ-30348, the Major Grading Permit for the Rancho Santa Fe Association (RSFA)’s Phases 1 & 2 grading violations and proposed Phase 3, unless and until the following violations have been cured. [bold italics added]:
Per County Grading Ordinance Sections 87.104 Violations – Public Nuisance and 87.110 Violations – Site Restoration:
1. Remove contents of all ‘bury’ pits; provide a date by which these items shall be accomplished within 6 months from February 9, 2023, with County inspection and report when completed.
2. When Phase 3 is approved, the County will make regular and unannounced inspections to ensure regulations are met, including that dust control and Best Management Practices are employed.
3. SDPG will forward comments received from residents. The SDPG also recommends that the Golf Course restore, per Secs. 87.104 and 87.110:
a. The 60-80 trees removed with appropriate species;
b. The removed safety screening vegetation/bushes installed to protect riding and hiking trail users from golf balls, and
c. Provide a date by which these items shall be accomplished within 6 months from February 9, 2023, with County inspection and report when completed.
Motion by Laurel Lemarié, seconded by Sharon-Neben-Fogg was approved: 10 Ayes, 0 Nos, 0 Abstentions, 3 vacancies.”
The SDPG will hold another Special Meeting about the illegal grading issue February 21 at 7 P.M. The County granted the RSFA grading permit on February 14, 2023, without including the bulk of SDPG’s modest recommendations. The SDPG notified the County it may appeal the decision unless the County included the content of its motion as well as the modifications the County imposed on the RSFA. The County has not responded.
Referring to the SDPG, Mr. Trubey stated: “I can’t think of a worse way to conduct policy than what the Planning Group is doing.”
A Few Facts
1. A County representative’s April 9, 2021, email to Pete Smith (RSFA project consultant) and others stated:
- “…A grading permit will not be required for the Phase 1, irrigation utility work, as long as the following items are provided:
- “…A certification that the proposed irrigation utility work is temporary and will not include grading or any permanent changes to land contours.” [italics added]
- “The certification should recognize that the subject’s property contains streams or waters that may be subject to regulation by the Federal or State agencies and it is the applicant’s responsibility to consult with each agency to determine if permits are required prior to the commencement of work…”
2. On January 19, 2023, the County wrote in the “Rancho Santa Fe Golf Club Notice of Exemption Technical Memorandum”:
“Around April 2021, the illegal grading of approximately 28,820 cy of excavation and approximately 21,500 cy of fill (including 1,430 cy of soil import) occurred as part of the Masterplan Course Renovation. On August 13, 2021, Assistant Engineer Alphonso Colmenero from the San Diego Office of Code Compliance issued a Stop Work Order against the Rancho Santa Fe Association. On September 3, 2021, the County of San Diego Planning & Development Services Code Compliance Division issued an Administrative Warning for Grading Violations to the Rancho Santa Fe Association. After the Stop Work Order and Administrative Warning for Grading Violation were issued and served on the Rancho Santa Fe Association, the unlawful Golf Course renovation grading continued until completion at an unknown date in October, 2021.” [italics added]
3. On May 21, 2021, an RSFA contractor sent a number of individuals an E-mail that said: “All please see the attached… I have reviewed the attached documents…draft permit schedule shows plan approved in February 2022. It appears they have used their standard turnaround time and not the expedited schedule….”
4. On February 14, 2023, the County Deputy Director of Planning & Development Services filed a “Notice of Exemption” relating to California Environmental Quality Act (CEQA). “Project Description” states: “The Project includes 12 acres of grading violation areas and 10 acres of new grading at the Rancho Santa Fe Golf Course. The violation grading included 28,820 cubic yards (cy) of excavation, 21,500 cy of fill, and 1,430 cy of bunker sand import. The proposed grading includes 11,430 cy of excavation, 10,970 cy of fill, and 310 cy of bunker sand import.” [italics added]
Although County representatives informed some RSFA members that no further grading took place after the Stop Work order had been issued, there is now proof that the illegal grading started in April 2021 and continued until October 2021.
5. At the January 18, 2023, SDPG Special Meeting, a County representative incorrectly said: “Based on what we saw with follow-up, there was not massive amounts of earthwork, we didn’t observe any further violation.” Source: “County Extends Review Period for RSF Golf Club Grading Permit”
6. In January and February 2023, the County’s admissions of what transpired is backed up by many other documents and/or statements. These records clearly demonstrate that certain current and former RSFA Board members; certain RSFA senior staff and certain RSFA contractors knew what was going on and aided and abetted the situation. Those few directors who fought for disclosure when they found out what was going on, are still fighting for disclosure and righting the wrongs.
7. Those directors who came on the Board after the illegal grading was completed have had time for due diligence but have failed to join the fight against the cover-up and are now complicit in the wrongdoings.
8. The RSFA hired Ekard Smith (former RSFA Managers Walt Ekard and Pete Smith) to work with the County in order to obtain the “missing” grading permit in January 2021. Three RSFA Board members didn’t know there was no grading permit, nor that Ekard Smith had been hired, and without the requisite contract, until September 2021. Once advised, they were not told the whole truth.
On the Record, for the Record
Many of Mr. Smith’s records show that certain RSFA individuals and others were fully aware of what was going on, such as:
1. “…the County specifically conditioned their determination that a permit was not need, on the condition that the work ‘…will not include grading or any permanent changes to land contours.’ [italics added] We are in clear violation of this condition and need to address it. Based on my brief site visit it is very clear that violations are currently ongoing and have been for some time. When I saw the grading work yesterday on the 18th green it was painfully obvious that the work had been planned prior to any discussions with the County. It appears that the Golf Club intentionally—through our partnership—misled the County as to the extent of the work that is planned for Phase 1 …”
2. “ I was at the course yesterday and unfortunately it looks like a war zone.…”
3. “In addition to a violation of our Understanding with the County, the work on 18 is a major grading next to a flood way without any approvals or storm damage precautions. This is a clear violation of the San Diego County Grading Ordinance. Additionally, there is a mountain of dirt by the 3rd hole next to what appears to be a large burial pit and the 4th fairway has had significant contour changes. Again, violations of both our Understanding with the County and the Grading Ordinance. Before you decide your next step, please take a look at Chapter 1 of the San Diego County Grading Ordinance. It outlines what a violation is and what the potential civil and criminal penalties could be. [italics added] This is a big deal and the downside is significant…”
4. “…The County has filed a Stop Order telling us to Stop Work. We have to keep an eye over our shoulder that the County Inspectors doesn’t (sic) just show up…. We are facing significant community issues when the word of the Stop Order gets out. Long term damage to the Association’s reputation at the County…We simply can’t (sic) stop is the reality and we will have to take the penalties.”
5. Referring to the Stop Work Order: “That is not what I observed yesterday. I saw fairways being modified, approaches to greens being work (sic) on and work in the flood plain with no storm water runoff protection to be seen…Stop Work Orders are very serious and have significant ramifications…There is a chance the County will not send out another inspector to check and therefore possible that the Golf Club can continue at the same pace. However, there is a significant downsize (sic) if an Inspector does come out and that could include fines and another Stop Order requiring work to stop on the sod and the irrigation work as well. Clearly a disaster.”
6. “Not only the Golf Club exceed (sic) their authority in the first phase, which resulted in a Stop Work Order they are continuing, as of yesterday to violate the terms of the Associations’ current understanding and agreement with the County. They have started new significant grading projects since the Stop Work Order was issued that have nothing to do with regrassing, irrigation or bunker work….I hope you can understand our position on this….I wanted you to understand why we are not willing to go forward with processing phase 3.”
Shortly after the email above, Ekard Smith did not renew its “agreement” to represent the RSFA on the golf course project.
In his SDPG article, Mr. Trubey stated that all the illegal grading was the result of a “misunderstanding.” With all the documents now available to him and other Board members, would he still stand behind such a belief?
Mr. Trubey also commented: “Surely the Golf Club deserved autonomy on how to landscape its own course.” The RSFA golf course belongs to all RSFA members, not just to the golf club members. If Mr. Trubey’s statement was correct, why were landscape plans required to go through the Art Jury and County approval processes before work commenced? County Ordinance Sec. 87.110 (a): “Whenever the County Official determines that grading or clearing has been done in violation of the requirements of this Division, including grading or clearing without obtaining the required permit or grading or clearing in excess of that permitted by an approved permit, the County Official may order that the site be restored to the condition it was in previous to the unlawful grading or clearing. Restoration ordered may include revegetation of the site with species of plants identical to or serve biological resource values as close as possible to those of the vegetation which existed on the site prior to the illegal grading or clearing.”
And, in light of the above, does he still believe that it is acceptable for the RSFA not to follow the approved plans?
The 60-80 trees that were cut down, in violation of the authorization of the RSFA Board and Art Jury, were removed over a year and a half ago. Does Mr. Trubey believe that it takes this long to come up with a plan to replace the illegally removed trees?
Who’s fault is it if the delay, as Mr. Trubey recently estimated, “…will likely cost the Association a significant amount of extra money (around $500,000 is a figure I heard—yes, that’s right, that’s effectively $1,000 out of every golf members’ pocket)”?
Blaming the SDPG is beyond the pale, and meant to distract from the true culprits in this matter. The task of the SDPG is not to “win friends,” as Mr. Trubey implied, but to carry out its official duties on behalf of all members of the public. It would be unfortunate if the RSFA golfing members have to pay the additional costs associated with this debacle. The majority of golf members had no idea what was going on.
In an ideal world, those few directly responsible for the deliberate failure to obtain a timely grading permit and involved with the illegal activities would pay any additional costs incurred. If the RSFA had followed its own governing documents, the project would have been completed long ago, with no illegal activity, no cover-up, no additional costs, and no heartache for many.
Mr. Whittemore is a former President of the RSFA Art Jury (2022)