Introduction
Hi! My name is Asaf Benhaim. My family and I live in San Diego, CA in one of the most beautiful communities anywhere - The Preserve. This community is surrounded by the pristine Penasquitos Canyon Preserve and is one of the most desirable communities in San Diego. My wife and I were fortunate to purchase land here in 2013, and in 2017 finished building a beautiful home to raise our family of 4 kids. We know that we are privileged and truly fortunate to live in this community, but even in paradise there can be tension. I published this opinion page in hope of raising awareness to a dangerous condition on our street shamelessly caused by one neighbor.
Neighbors play a vital role in fostering a sense of community and safety in our local streets. However, there are times when one individual's actions can cause unnecessary turmoil and even danger to others. With this website, I want to share a concerning issue affecting my community, specifically my street - The Preserve Terrace, which involves my neighbor ron, who in August of 2022 shamelessly decided to block the only turnaround on our road with cones. This seemingly simple act has created hazardous conditions for all residents, as well as visitors to our neighborhood.
In our community, we rely on a single turnaround point to allow vehicles to safely change direction on our dead-end street. Unfortunately ron, who’s property includes the turnaround, has taken it upon himself to place cones in this area, effectively blocking access for everyone. The result is that drivers are left with limited and potentially dangerous options: either attempt a multi-point turn or reverse approximately 550 feet back up the road. This situation not only causes inconvenience but also poses a risk for accidents and collisions.
As neighbors, we strive to create a peaceful and secure environment for ourselves and our families. This shameful act by one neighbor has generated unrest and frustration among our community. Additionally, it has increased the risk of accidents, especially for those who may not be as skilled in multi-point turns or reversing long distances. This issue affects everyone who uses our street, including neighbors, delivery drivers, emergency services, community landscapers/maintenance crew and others visiting our homes.
ron’s ultimate goal is to build a vehicular gate in the area where the cones currently stand. While securing one's property is understandable, it should not be at the expense of community safety.
A key factor in this dispute is that ron owns the turnaround and there is no general access easement. However the turnaround has been open and continuously used since the community's founding more than sixteen years ago and an equitable/prescriptive easement has been clearly established. Prescriptive easement is a foundational legal concept in property law that grants a person or community the right to use another's property for a specific purpose if the use has been open, continuous, and notorious for a specific period; five years according to CA law. In this case, ron's desire to build a vehicular gate comes into conflict with the community's long-standing use of the turnaround area.
Claims
1
ron claims: Vehicles using the road perfectly arrive at their intended destination, as such, his guests can use his turnaround, and my guests should use my driveway.
Response: this is not about my guests vs ron's, there are many lost community vehicles, or community vehicles that simply miss their intended destination - those vehicles have nothing to do with my household, but all require proper and safe turnaround. This is the community's traffic problem, I just live closest to it.
2
ron claims: His home was burglarized and he needs a way to protect his family.
Response: I empathasize with ron's trauma of being burglarized, but while securing his property is understandable, it should not be at the expense of community safety. Why doesn't ron follow the advice of SD Superior Court Judge, Keri Katz, "There is nothing preventing 'ron' from building a gate/fence on his property at a location which will not prevent access to the turnaround."
3
ron claims: This is his property!
Response: ron chose to live in a community with an HOA, but does not want to abide by their rules. Imagine if all homeowners in our community can do whatever they like. I may want my home to look like this!
In addition, the turnaround has been open and continuously used from the community's founding in 2007. Precedent and prescriptive easement have unequivocally been established.
4
ron claims: His roadblock is not causing any safety issue.
Response: Ofcourse it is! As indicated by numerous independent entities, like the City of SD,
"…it is the unanimous opinion of City staff that the encroachment
will create a dangerous and unsafe condition to vehicular traffic,
pedestrian traffic and will be detrimental to the health, safety,
and welfare of the public."
Traffic consultant retained by The Preserve HOA,
"The videos quickly illustrate the operational and safety hazards caused by an unapproved encroachment in the public easement and on the street. With insufficient space to turnaround, vehicles are forced to back down the street and into the intersection of The Preserve Terrace and the Preserve Way. This is a hazard…."
City of SD Judge Richard S Whitney who excoriated ron,
"[ron]'s assertion defies logic as it would allow an applicant to obtain an EMRA notwithstanding obvious negative effects to the public's health, safety, or general welfare as long as the applicant deliberately failed to provide the City with the necessary information to make an analysis of the project's impact on the public's health, safety, or general welfare."
Or any of the videos that objectively indicate as such. How about this one?
5
ron claims: If the HOA places a "No Outlet" sign at the entrance of the road, it would address the problem of delivery vehicles getting stuck on our street.
Response: Nonsense. If ron truly thought road signs were so effective at stopping vehicles from entering our street, he would also believe that his "Private Property" sign could single-handedly keep vehicles out of 'his' turnaround, and not need the cones.
6
ron claims: The police captain and fire marshal support a gate and cones.
Response: While highly respected in their specific roles, those individuals do not have jurisdiction over traffic safety and easement decisions. They might express support towards placing gates or cones as a deterrence for burglaries, but they cannot review these actions within the context of community planning/regulations, aesthetics, or traffic safety. The responsibility for such evaluations belongs to the HOA and the City of San Diego DSD (Development Services Department). Both entities have resoundingly rejected ron.
7
ron claims: San Diego Senior Deputy City Attorney Jana Will is biased against him.
Response: Really ron!! The neighbors are a nuisance, multiple HOA board members are wrong, independent traffic engineers are mistaken, the City is biased. When are you going to take a long look at your actions and the harm you are causing our community?
8
Asaf claims: ron can build a gate on his property at a location which will not prevent access to the turnaround.
Timeline
Aug 20, 2024
After being denied by our community HOA, the City of SD, and CA Superior Court, ron is now taking his case to the CA Court of Appeal. It seems he’s determined to keep losing—both his time and money.
Aug 8, 2024
ron’s 8-month legal battle against the City FAILS as Judge denies ron. Seeing through ron's BS claims, Judge Whitney states, "[ron]'s assertion defies logic" and a blocked turnaround has "obvious negative effects to 'the public's health, safety, or general welfare'"
Apr 17, 2024
ron sends me a cease and desist letter to remove this very website. I replied back a week later that he can go fly a kite.
Apr 9, 2024
ron responds to the HOA with a long-winded, nonsensical diatribe and subsequently mails the documents to all community members.
Feb 28, 2024
HOA sends a violation letter to ron indicating that his persistent cones blockage of the road is causing the HOA to themselves be in violation of City Permits.
Dec 21, 2023
ron takes legal action against the city of SD because they denied his application to block the turnaround with his gate.
Dec 12, 2023
Dec 11, 2023
Dec 10, 2023
ron actively blocks mother and daughter trying to egress!
In between
Peace and Quiet :)
Sep 22, 2023
Sep 20, 2023
The City’s Design Services Department (DSD) Engineering Division emphatically and unconditionally denied ron’s encroachment request.
Aug 10, 2023
The HOA attorney sent out an Updated Litigation Disclosure indicating they don't agree with ron’s vehicular gate. They cite ron’s “lack of governmental approvals” and “expert report findings” as reasons to reject his gate application. Also, the HOA filed its anti-SLAPP motion to dismiss ron’s lawsuit. Anti-SLAPP laws are intended to prevent people from using courts, and potential threats of a lawsuit, to intimidate people who are exercising rights concerning a matter of public concern. If successful, ron will be forced to pay the HOA’s attorney fees.
Aug 8, 2023
The HOA finally got their own traffic study expert, and they are affirmatively saying no to both the cones and the gate. The traffic expert summarizes his extensive report “...it is my professional opinion that the gate proposed by 'ron' should not be installed as this would prevent access to the turnaround at the end of The Preserve Terrace creating a dangerous condition within the common area of the Association.”
Apr 27, 2023
San Diego Superior Court Judge, the Hon. Keri Katz issued ruling denying ron’s preliminary injunction request to build a gate, stating, “there is nothing preventing ‘ron’ from building a gate/fence on ‘his’ property at a location which will not prevent access to the turnaround.” and “Plaintiff submit evidence that altering the status quo to allow ‘ron’ to construct a gate/fence would block access to the turnaround thereby creating a dangerous condition.”
Apr 20, 2023
I sur replied to ron’s new BS defense claim.
Apr 19, 2023
ron replied to my memorandum and the HOA’s memorandum and introduced a new defense to my prescriptive easement claim, indicating a prescriptive easement cannot take hold on an existing city easement.
Apr17, 2023
I submitted a memorandum to reject ron’s application, accompanied by an expert witness declaration. Concurrently, the HOA also submitted a memorandum to reject ron’s application.
Apr 13, 2023
ron submitted a memorandum to support his application for injunction.
Mar 29, 2023
The matter was brought up before San Diego Superior Court Judge, the Hon. Keri Katz, and ron lost his TRO claim with resounding clarity, the Judge at one point stating, “...there is clearly no emergency here” and “...no judge in San Diego would grant this.” A preliminary injunction hearing is set for April 27, 2023.
Mar 22, 2023
ron countersued me and the HOA with baseless allegations, AND filed for a Temporary Restraining Order on the matter.
Mar 15, 2023
I responded to the HOA’s request for information in extreme detail accompanied by an opinion from a licensed traffic engineer, notably ron chose not to respond.
Mar 9, 2023
I filed complaint in superior court against ron to enforce a prescriptive easement.
Feb 2023
The new HOA board established a "briefing schedule” to evaluate the issue. The HOA’s letter specifically mentioned they will not address the prescriptive easement claim, as they believe it is a neighbor to neighbor dispute. I disagree with this premise, as I maintain this is a community traffic issue, I just happen to live closest to it.
The HOA determined it needed more information from ron and requested that he furnish a completed architectural application which includes a permit among other documents. In the meantime, the HOA instructed him to remove the cones from blocking the street as it presents a clear safety hazard.
ron complied with the HOA's instruction and removed the cones for a few days. However, he then contradicted the HOA's directive and placed the cones back, claiming his home was being staked by thieves. During this time, the 3 member HOA board experienced some turnover, requiring time for new board members to familiarize themselves with the matter.
Sep 2022
Both parties plead their case to the HOA highlighting their concerns and positions on the matter.
Aug 13, 2022
On this lovely summer day, I am in my backyard spending time with my son when I notice, through the side fence, ron positioning cones in the middle of the street. I carry on with my day, assuming this to be a temporary exercise of some sort. However, the following day, I see that the cones are still in the middle of the road, arranged in a manner that prevents vehicles from making a turnaround. Consequently, I send this email to ron about this issue. Despite my concerns, he disagrees that the cones would cause any problems on the street.
Videos
7-7--2024
Incident showcasing my 14 yo son riding his bike and intersecting dangerously close to a blindsided, reversing Amazon truck.
2-2-2024
31 incidents in 31 days. 13 min vid showcases at least 1 incident every day in the month of January!
7-14-2023
6 min video compilation of 5 community vendors and vehicles that needed turnaround access on 7-14-2023
5-19-2023
5 min video compilation of 5 community vendors and vehicles that needed turnaround access on 5-19-2023
3-24-2023
The 3 min video shows a UPS truck making 4 separate attempts to make a U Turn, ultimately needing to reverse the full distance up the street
2-26-2023
A vehicle with a long flatbed trailer tries twice to egress by reversing with no success. Sensing a dangerous situation, driver correctly decides to temporarily shift cones and use the cul de sac to make a turn.
1-28-2023
An amazon truck delivering packages made an 11 point turn directly in front of my utility boxes (includes internet, cable and electrical) I believe hitting my security sign directly in front of the boxes!
12-10-2023
This coming after SD DSD clear decision that no obstacle shall prevent vehicular traffic.
3-31-2023
Landcare trailer jackknifed demonstrating dangerous environment to HOA services. I believe the HOA's services have been using the turnaround since the community's founding in 2007.
4-24-2023
4 min unsped video shows the challenge for large trucks to egress when the roadway is blocked.
9-11-2022
A Teenage driver guest of ours was forced to reverse 550 ft up road potentially causing dangerous situation to parked cars and people
3-25-2023
After delivering a package to our neighbor, FedEx Truck attempts to egress by using our driveway, unsuccessful he then reverses precariously up the road.
1-4-2023
Large white truck quickly reversing up the road.
2-23-2023
My wife was exiting our driveway and saw a truck driving backwards. This truck was servicing lot 15, they are our next door neighbors and just recently moved in. (6932 The Preserve Terrace)
9-10-2022
Lost vehicle in community reverses fast up the road, while dogs and family were playing in front yard.
1-30-2023
Truck quickly reversing 550' up road
2-3-2023
Fire Truck reversing up road with 2 firemen escorting. Imagine if there were cars parked on the road and how challenging it would be to reverse. Should every large truck require escorts when reversing 550 ft?
4-20-2023
This 4-minute video meticulously demonstrates the time and expertise necessary for even a professional driver to reverse a trailer up the road during nighttime conditions.
3-28-2023
Truck reverses into the Preserve Terrace from the Preserve Way
9-8-2022
FedEx truck reverses from my house up the road, approximately 300 ft
9-13-2022
Trucks that don't want to back 550' up road are forced to dangerous multi point turns
1-6-2023
Street sweeper from (1/6/23) morning. The clip has been sped up for brevity, but suffice it to say the street has not been sufficiently cleaned, given the cones and Mr. Sellemi’s blockage of easement land.
5-9-2023
Landcare Trailer Reverses Full 550'
4-3-2023
The turnaround is still being used, even after the roadblocks have been put in place
4-7-2023
HOA's cleaning and landscaping services have been using the turnaround for 15 years! They should help record prescriptive easement.
Legal
Other than the publicly available documents in the record of the San Diego Superior Court or on file with the San Diego County Recorder’s Office, the matters addressed on this website are my opinions only, and should not be attributed to anyone else but me. These opinions are based on information available to me and it is always true that different people with different points of view can draw different conclusions. The reader is free to review the facts and come to a different conclusion. I can be contacted at asaf@teambenhaim.com
