Archives: November 2015

Court Upholds Mitigated Negative Declaration for Trail Improvement Project

On October 29, 2015, the Third Appellate District issued an unpublished opinion upholding a mitigated negative declaration prepared by the City of Folsom for a trail improvement project along Lake Natoma in the American River Parkway. The project will pave some existing dirt trails to provide ADA-compliant access to the river, rehabilitate eroded areas, remove non-native invasive vegetation and replant native species, and provide a non-motorized boat landing beneath the Lake Natoma bridge at the edge of Folsom’s historic district. Save the American River Association claimed the project was inconsistent with the Folsom Lake State Recreation Area General Plan and American River Parkway Plan, but the court found no substantial evidence in the record to support SARA’s claim that increased use of the project area would conflict with the applicable plans, which designate the area for low intensity recreation. RMM partner Sabrina V. Teller represented the City of Folsom, assisted by associate Elizabeth Sarine and former associate John Wheat.


Court Upholds EIR for Westside Subway Project

The Westside Subway Extension public transit project will extend the heavy-rail Purple Line from downtown to the Westside of Los Angeles, bringing much needed relief from the infamous traffic congestion of Los Angeles. Due to concerns about seismic safety and the desire to locate stations with the highest ridership potential, the Los Angeles County Metropolitan Transportation Authority selected an alignment that would travel under Beverly Hills High School. This alignment drew opposition from the Beverly Hills Unified School District and the City of Beverly Hills. The school district and the city both filed CEQA lawsuits; the city also argued that Metro did not properly conduct a hearing for the project. In a published opinion, the Second District Court of Appeal upheld the EIR for the project and determined that Metro properly conducted the hearing on the project. RMM attorneys Whit Manley, Tiffany Wright and Laura Harris represent Metro. A summary of the case can be found here.


Sixth District Court of Appeal Finds Amendments to Tree Ordinance Not Exempt from CEQA

The court held the City of Santa Cruz failed to demonstrate with substantial evidence that amendments to its Heritage Tree Ordinance and Heritage Tree Removal Resolution fell within a categorical exemption to CEQA. (Save Our Big Trees v. City of Santa Cruz (Oct. 23, 2015) ___ Cal.App.4th ___, Case No. CV 178084.)

In 1976, the city adopted its Heritage Tree Ordinance, which established a permit process governing the preservation of heritage trees. “Heritage trees” were defined by their trunk circumference or historical value. In 1989, these protections were extended to “heritage shrubs” and “heritage tree” was redefined to include trees with horticultural significance or those that provided a valuable habitat. The term was redefined yet again to include narrower circumference trees and to include more specific definitions of historical and horticultural significance. In 1998, the City adopted the Heritage Tree Removal Resolution that outlined three circumstances under which a heritage tree or shrub could be altered or removed.

In 2013, the city council approved amendments to the Heritage Tree Ordinance and the Heritage Tree Removal Resolution. These amendments added a “purpose” section to the Ordinance and established replanting requirements for heritage tree alterations and removals. The amendments also revised the definition of heritage trees by removing references to shrubs and narrowed the manner in which a tree could acquire a heritage designation or be deemed horticulturally significant. The amendment prohibited property owners from allowing certain trees to exist in conditions that would be injurious to the trees, and also strengthened the Ordinance’s penalty provision.

The city also amended its Heritage Tree Removal Resolution by revising a provision allowing for removal of heritage trees and introducing additional circumstances under which heritage non-native invasive trees may be removed.

The city claimed the amendments were exempt from CEQA because they assured the “maintenance, restoration, enhancement, and protection” of natural resources and the environment pursuant to the categorical exemptions set forth in Guidelines sections 15307 and 15308 (class 7 and class 8). Opponents of the amendments thought it would be too easy to cut down heritage trees under the revised scheme. The City filed a notice of exemption from CEQA, and petitioners brought suit. The trial court denied the petition, ruling substantial evidence supported the city council’s exemption determination.

The Court of Appeal first looked at the meaning of the phrase “actions…to assure the maintenance, restoration, or enhancement” as used in the exemptions. The court found that the phrase embraces projects that combat environmental harm, but not those that diminish existing environmental protections. The court noted that revisions to the Heritage Tree Ordinance meant that trees could no longer be designated as heritage on a whim. As to the Heritage Tree Removal Resolution, the court observed that the amendments introduced new justifications for removing a tree (including unreasonable financial burden on a property owner, likely adverse effect on health, or invasive species), thereby relaxing removal standards.

The court rejected the city’s arguments that the amendments’ intent was not to encourage tree removal, or that in practice the amendments would not result in more heritage tree removals. The court stated that, even assuming the amended Heritage Tree Removal Resolution will not actually result in additional tree removals, that did not render it an action to assure the maintenance, restoration, or enhancement of the environment. The city also failed to show that the amendments would not increase the number of likely tree removals. The court deemed the replanting requirement, under which removed trees had to be replaced by a certain number of small trees, to be insufficient in terms of providing the same benefits to the urban environment.