Judge ends temporary order blocking removal of palm trees, saying residents lack property rights to stop it
A federal judge in San Diego declined Nov. 9 to extend the temporary restraining order she had issued preventing the city from cutting down several tall palm trees at Newport Avenue and Santa Barbara Street in Point Loma.
U.S. District Judge Cynthia Bashant said during a brief hearing that local residents who filed a lawsuit aiming to block the tree removal did not have property rights over the trees because the city owns them and the land they stand on. Bashant had granted the temporary restraining order Nov. 1 “to preserve the status quo until defendants have the opportunity to respond to plaintiffs’ request for equitable relief.”
Her decision not to extend the order meant it expired at noon Wednesday, Nov. 10.
The city reissued a statement from October that read in part: “We understand the community’s concern over losing these tall palm trees, which are not native to our region. The city will prioritize working with the adjacent property owners to plant new leaf trees that will add to our urban canopy. In addition to providing shade and lowering temperatures, native trees support the city’s climate action goals of removing air pollution, reducing stormwater runoff and creating a more sustainable and resilient San Diego.”
City spokesman Anthony Santacroce said no date has been set to remove the palm trees.
San Diego city forester Brian Widener did not respond to a request for comment.
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.
The lawsuit, dated Oct. 28, was filed by John and Tracy Van De Walker, who own a house in the 4400 block of Newport Avenue. It said removing the “100-year-old palm trees” would damage “the value and use of the plaintiffs’ property.”
The complaint named as defendants Widener, the San Diego County Regional Airport Authority, the Federal Aviation Administration and the California Coastal Commission and took issue with aviation officials’ argument that the trees pose a potential problem because of their height — about 70 feet.
Longtime residents say the towering trees 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 iconic. They’re a part of our history,” Van De Walker said.
After Bashant’s Nov. 9 decision, area resident Rebecca Erickson told KUSI-TV, “I guess we’ll have to tie our little senior citizen bones to these trees and see how many bones they break.”
The Van De Walkers’ attorney, Marc Steven Applbaum of La Jolla-based Midway Law Firm, told KUSI that the judge told him he would have a legal argument for an appeal if he could show that his clients have “any sort of property right.”
The judge also said “the proper remedy” in the case would be monetary rather than preventing the trees from being cut down, Applbaum said.
Applbaum did not respond to the Point Loma-OB Monthly’s request for comment.
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, Applbaum 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.
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.
At the time of the survey, six of the eight palm trees were not penetrating the safety zone, though some were less than a foot away, according to figures provided by the airport.
Erickson told KUSI that residents don’t understand why the trees would need to be cut down, at least now. “We’re not ignorant, but we are ignorant of the information because we don’t know where to get it and no one will speak to us,” she said.
The Airport Authority, which is responsible for airport operations, said in a statement in October that it is required to “proactively mitigate and prevent future effects on airport operations by ensuring vegetation does not block or impair instrument or visual operations at the airport.”
“The city of San Diego-owned palm trees located in the public right of way adjacent to the neighboring homes exceeds or will soon exceed acceptable elevations under federal standards, intruding into the airspace that surrounds the airport,” the statement read.
The lawsuit, however, contends the tree removal “would use public monies with no viable public purpose, constituting a gift of public funds in violation of the California Constitution.”
This isn’t the first time local residents have fought to save palm trees. In 2005, a property owner requested that the city remove some palms near Santa Barbara Street and Niagara Avenue in Point Loma. The resident complained that fallen fronds had damaged her roof.
The city sent crews to cut down the trees and managed to remove a few before other community members noticed the work and stood under the palms to prevent further chopping. Ultimately, the trees were saved after officials promised to trim them at least annually.
— San Diego Union-Tribune staff writer Lyndsay Winkley contributed to this report.