Court order temporarily blocks removal of palm trees pending hearing Nov. 9
A federal judge in San Diego this week issued a restraining order at least temporarily preventing the city from cutting down several tall palm trees at Newport Avenue and Santa Barbara Street in the Point Loma-Ocean Beach area.
U.S. District Judge Cynthia Bashant granted the temporary restraining order Nov. 1. It was requested in a lawsuit filed by local residents John and Tracy Van De Walker, who own a house in the 4400 block of Newport Avenue.
Bashant scheduled a hearing for 2 p.m. Tuesday, Nov. 9, for oral arguments on whether the order should be extended. If it is not extended, it will expire at noon Wednesday, Nov. 10.
“The court finds it appropriate to enter a limited TRO to preserve the status quo until defendants have the opportunity to respond to plaintiffs’ request for equitable relief,” Bashant wrote in her decision. “Preserving the status quo is appropriate because environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration.”
The Van De Walkers’ lawsuit, dated Oct. 28, names as defendants San Diego city forester Brian Widener, the San Diego County Regional Airport Authority, the Federal Aviation Administration and the California Coastal Commission and takes issue with aviation officials’ argument that the trees pose a potential problem because of their height — about 70 feet.
Longtime residents describe the towering trees as iconic and say they are part of the fabric of the community. About two dozen people protested Oct. 21 against removing eight trees.
Tracy Van De Walker was one of the organizers of the protest, and on the two days before that, she placed herself at the base of some of the palms, preventing crews from cutting them down. At least one palm was removed before the crews gave up, she said.
“These tree-lined streets are a part of Ocean Beach. They are iconic. They’re a part of our history. They are part of what make Ocean Beach Ocean Beach,” Van De Walker said.
An out-of-office message from Widener said he is unavailable until Monday, Nov. 8. A request for comment to another city representative was not immediately returned.
A representative previously had said the city would not comment about the lawsuit.
For its final public meeting of 2021, the Ocean Beach Town Council packed the October agenda with presentations on a broad spectrum of key issues.
Every five to 10 years, San Diego International Airport officials conduct a survey to ensure that no obstacles protrude so far into the sky that they could interfere with the sensitive navigation sensors pilots rely on to fly when visibility is low. How much space planes need to fly safely in those circumstances isn’t determined by the airport — it’s a buffer zone the FAA sets.
Airport and San Diego city officials said the survey, which took about two years, found that the eight palms, and about a dozen other palms in the city’s Bankers Hill area, were found to be obstructing that buffer zone.
“According to the FAA, during inclement weather conditions these trees may interfere with the designated flight path and potentially cause arriving planes to be diverted away from the airport,” the city said.
Before filing the lawsuit, the Van De Walkers’ attorney, Marc Steven Applbaum of La Jolla-based Midway Law Firm, sent a cease-and-desist letter Oct. 21 to Widener; Mayor Todd Gloria; Ralph Redman, manager of airport planning for the Airport Authority; and the FAA.
According to a statement from Applbaum, the letter called on the recipients “to refrain from cutting down, mutilating [and] extracting” the palm trees along Newport Avenue and Santa Barbara Street.
The complaint says removing the “100-year-old palm trees” would damage “the value and use of the plaintiffs’ property.”
With no movement from government officials to address the Van De Walkers’ concerns and those of other property owners, the statement said, Applbaum filed the lawsuit alleging “federal and state civil-rights violations [and] inverse condemnation in connection with the regulatory taking of the palm trees in violation of the California Environmental [Quality] Act.”
The statement added that based on Applbaum’s conversations with airline pilots, the aviation safety reason for removing the trees “is at best weak and inconclusive.”
Many residents have pushed back against that reason as well because, technically, some of the trees aren’t too tall — yet. The FAA advises that airports add 10 feet to any tree they measure during their surveys because the surveys are done infrequently and trees don’t stop growing.
The additional 10 feet assumes that each of the trees will grow about 2½ feet per year, a figure that a city arborist said is reasonable.
Currently, six of the eight palm trees aren’t penetrating the safety zone, though some are less than a foot away, according to figures provided by the airport.
— San Diego Union-Tribune staff writer Lyndsay Winkley contributed to this report.