When California local governments stretch their resources too far to regulate private conduct and property rights in the name of environmental protection, CEQA can make it quite onerous to undo what has been done. And one can rest assured that if any additional trees might be allowed to “fall in the forest,” CEQA plaintiffs will be close by with their ears peeled to prevent the tragedy. Such are the fundamental philosophical lessons of the Sixth District Court of Appeal’s recently published opinion in Save Our Big Trees v. City of Santa Cruz (2015) 241 Cal.App.4th 694, filed on October 23, 2015.
Long a cultural melting pot and mecca for hippies, surfers, tourists, bohemians, tree-huggers, and environmentalists of all stripes, the City of Santa Cruz – nestled between the deep blue Pacific and the deep green Santa Cruz Mountains – unsurprisingly has a long and proud history of local legal protection for its “urban forest.” The City’s “Heritage Tree Ordinance” – which provides legal protections for large or otherwise significant trees on public or private property within the City – dates back to the country’s bicentennial year of 1976; in 1989, the tree ordinance’s protections were extended to “heritage shrubs” and trees with horticultural and habitat significance, and still later to trees of specific size (44-inch trunk circumference), “historical significance,” or “horticultural significance” (a broad category encompassing non-exclusive and expansive factors such as unusual or distinctive beauty, relative age, distinctive size or structure, variety or uniqueness, habitat value, and being “[i]dentified by the City Council as having significant arboricultural value to the citizens ….”).
In 1998, the City adopted a Heritage Tree Removal Resolution establishing strict limits on the alteration or removal of heritage trees and shrubs – essentially, the “only circumstance” when in which such alteration or removal will be permitted is where the tree or shrub poses a threat to a utility or structure’s integrity, is sufficiently diseased or infested, or cannot be accommodated by any project redesign.
Clearly, the City’s ardor for all things arbor cannot be questioned.
But, alas, while decades of such robust legal protection have made the City rich in greenery, it ultimately ran lean on another kind of “green.” In 2009, when its urban forester was reduced from a full to three-quarter time position, the City’s parks and recreation commission began considering changes to the tree ordinance to reduce the forester’s workload. Seemingly beginning with the proverbial “low hanging fruit,” staff thus recommended excluding from protection heritage shrubs and non-native invasive species of trees (such as eucalyptus and acacia) living outside the “biotic resource area.” A subcommittee created by the parks commission to study the issues recommended eliminating the ordinance’s provision allowing the “subjective” designation of heritage trees based on historical or horticultural significance. Opponents claimed the proposed changes would make it too easy to cut down heritage trees, and submitted a letter from a geographer, ecologist, and professor of various environmental sciences opining they would lead to adverse environmental impacts; proponents favored allowing easier removal of non-native trees due to maintenance and fire-safety concerns.
Ultimately, after years of meetings and debate among City officials and staff about whether – and, if so, what – environmental review would be required under CEQA, the City Council adopted amendments changing the restrictions for non-native, invasive trees, and permitting removal of a heritage tree that has “created, or is likely to create an unreasonable and substantial hardship for private property owners such as excessive damage or degradation of property, unreasonable financial or economic burden, or an adverse effect on personal health such as allergies and physical mobility.” The City then filed a notice of exemption (NOE) from CEQA, claiming categorical exemptions applied because the ordinance amendments constituted regulatory action to assure the maintenance, restoration, or enhancement of a natural resource (Class 7) and/or the maintenance, restoration, enhancement, or protection of the environment (Class 8). (14 Cal. Code Regs., §§ 15307, 15308.)
This was all a bit too much for the foliage-fond plaintiffs group, which – in an effort that would make Julia Butterfly Hill proud – sued under CEQA, lost at trial, but then persevered and succeeded on appeal in securing a judgment invalidating the exemptions and the tree ordinance amendments. As the court of appeal observed, the Class 7 and 8 exemptions, under their plain language, apply only to “projects that combat environmental harm, but not [to] those that diminish environmental protections.” (Indeed, the Class 8 exemption itself expressly states that “relaxation of standards allowing environmental degradation are not included in this exemption.”) Because the tree ordinance amendments here weakened existing protections of heritage trees by “relaxing” and “loosening” the restrictions and limitations on removing such trees, the court held the City failed to carry its burden to show substantial evidence supported its determination that they fell within the claimed categorical exemptions. For example, the amended ordinance would “effectively remove heritage tree protection from groves of non-native invasive trees growing outside of a biotic resource area.” Even viewing the ordinance amendments “as a whole” as urged by the City, the court summarized that they: “(1) removed heritage tree protection from certain trees, (2) expanded opportunities to cut down protected heritage trees, and (3) strengthened the protection of those trees that continue to qualify as heritage and are not subject to removal. In other words, [the City] enacted a scheme that protects fewer heritage trees more effectively.”
While such tree ordinance amendments may well have been prudent and wise policy, given the City’s limited resources and experience with the messy and dangerous “invasives,” common sense is not the standard for falling within CEQA categorical exemptions. Unlike the state legislature, which is blissfully exempt from CEQA, local legislative bodies are not free to operate on the principle that what they “giveth they may taketh away” – at least not without full CEQA review, which isn’t exactly “free.” Once the City enacted restrictions on removal that placed non-native, invasive eucalyptus and acacia trees within its paternal and protective legislative embrace, it could not (even decades later, presumably with that much more wisdom and experience under its belt) enact a change in that policy without full analysis of its potentially adverse impacts on the existing environment under CEQA. As Bruce Hornsby famously sang, “That’s just the way it is.” And to paraphrase Adele, it’s a “lesson learned” for all municipalities that are contemplating the crafting or revision of a tree ordinance.
So what’s next for Santa Cruz, that shining little forested City by the sea? Will it decide to kill some more trees – and spend some more of its own scarce “green” – to prepare an EIR or MND? Or will it just abandon its years of tree ordinance reform efforts, and let the chips (and trees) “fall where they may”? Maybe hiring that forester back full time isn’t such a bad idea ….
Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for more than fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 4d, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, title insurance, environmental law and land use. For more information, visit www.msrlegal.com.