Residents drop lawsuit over removal of palm trees in Point Loma
A local couple have dropped their lawsuit against the city of San Diego over the removal of palm trees in the Point Loma-Ocean Beach area that local and federal authorities said posed potential flight safety hazards to planes using San Diego International Airport, City Attorney Mara Elliott announced Feb. 2.
In 2021, the Federal Aviation Administration and the San Diego County Regional Airport Authority said the city needed to remove several tall palm trees because their height exceeded a federal safety limit.
The palm trees were owned by the city and planted in the public right of way.
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Longtime residents in the neighborhood of Newport Avenue and Santa Barbara Street in Point Loma said the towering trees were part of the fabric of the community. About two dozen people protested in October 2021 against removing eight trees.
John and Tracy Van De Walker, who own a house in the 4400 block of Newport Avenue, filed a lawsuit in federal court Oct. 28, 2021, to try to block the removal of the trees. They said removing the “100-year-old palm trees” would damage “the value and use of the plaintiffs’ property” and alleged “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 lawsuit also contended the tree removal “would use public monies with no viable public purpose, constituting a gift of public funds in violation of the California Constitution.”
The couple later filed a new action in state court alleging the city could not cut down the trees under the San Diego municipal code and City Council policy.
Tracy Van De Walker was one of the organizers of the neighborhood protest and had earlier placed herself at the base of some of the palms, preventing crews from cutting them down.
Elliott said in her Feb. 2 announcement that her office “will petition the court to order the Van De Walkers to reimburse the city for the costs it incurred defending itself.”
“Meritless lawsuits like this one harm taxpayers by bogging down our overcrowded courts and forcing city staff and attorneys to respond to a frivolous claim,” Elliott said.
La Jolla-based Midway Law Firm, which represented the Van De Walkers in the lawsuit, said in a statement Feb. 3 that the couple decided to drop the suit after reading a recent court judgment in favor of the city in a similar case involving removal of pepper trees. The Van De Walkers “are exploring other options, both legal and political,” the statement said.
Earlier, in response to Elliott’s statements, an email from Bobby Edgemont of Midway Law Firm to the Point Loma-OB Monthly said “we would suggest that the city attorney review [California Code of Civil Procedure Section 1021.5] before making threats.”
That code says a court may award attorneys’ fees “to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest.”
A follow-up question about how the code would not support the city in this case wasn’t returned.
The lawsuit took issue with aviation officials’ argument that the trees posed a potential problem because of their height — about 70 feet.
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 a 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.
But the Van De Walkers’ attorney, Marc Steven Applbaum of Midway Law Firm, said his conversations with airline pilots indicated that the aviation safety reason for removing the trees “is at best weak and inconclusive.”
Many residents disputed that reason as well because, technically, some of the trees weren’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 tree will grow about 2½ feet per year, a figure a city arborist said is reasonable.
At the time of the survey, six of the eight palm trees in dispute were not penetrating the safety zone, though some were less than a foot away, according to figures provided by the airport.
The Airport Authority, which is responsible for airport operations, said in a statement in October 2021 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.
But U.S. District Judge Cynthia Bashant soon afterward granted a restraining order requested by the Van De Walkers that temporarily prevented the trees from being cut down. A week later, she declined to extend the order, saying the Van De Walkers did not have property rights over the trees because the city owns them and the land they were standing on.
The city razed five of the trees April 25, 2022. All have been removed, Elliott said.
2:20 p.m. Feb. 4, 2023: This article was updated with additional comments from Midway Law Firm.