A new wrinkle has developed in the fight by OB neighbors to save a group of palm trees on Newport Avenue from being removed because their height allegedly interferes with incoming plane flights.
Peninsula Community Planning Board, a land-use advisory group to the City, wants to see the Newport palms saved. At the end of last year, Peninsula Community Planning Board sent emails to the office of U.S. Rep. Scott Peters (D-52) requesting an investigation.
Peters’ office recently responded, noting the City may have overlooked an important legal step in trying to have the trees immediately removed as an emergency measure.
Pointing out federal regulations establish standards for determining obstructions to air navigation that may affect the safe and efficient use of navigable airspace, an excerpt from Peters’ letter reads: “An obstruction evaluation filing with the Federal Aviation Administration is the necessary trigger for the agency to issue an advisory determination, if any object would be considered an obstruction and to apply any mitigation measures to protect the existing airspace. There is no record of an obstruction evaluation case filed with the FAA for the palm trees by either the Airport Authority or the City. The FAA is not a party to the proposed actions of the City.”
In its letter of support for the Newport palms, Peninsula Community Planning Board stated: “The community is overwhelming against the removal of these historic palm trees planted over 100 years ago in the early 1900s by Col. David Charles Collier, who is considered by many as the true founder of Ocean Beach. The palm trees are of historical and cultural significance to the local community.
“The National Historic Preservation Act of 1969, requires that each federal agency identify and assess the effects its actions may have on historic buildings,” continued Peninsula Community Planning Board’s letter. “Under Section 106, each federal agency must consider public views and concerns about historic preservation issues when making final project decisions. Neither the FAA nor the City of San Diego has provided the community with mitigation plans to address the historical significance of the palms.”
Last year, City crews went out to the intersection of Newport Avenue and Santa Barbara Street intending to remove more than a dozen palm trees as requested by the Airport Authority, which claimed the palms threatened to impair the visibility of airplanes.
But a host of protesting OB neighbors successfully blocked the immediate removal of all but one tree. Neighbors then retained attorney Marc Applbaum to sue the City attempting to block the emergency removal of the trees. They argued the trees are healthy and historic and not a threat to incoming aircraft while insisting that cutting palms down in the right-of-way on Newport Avenue violates their property rights and depresses their property values.
However, OB neighbors lost round one in the legal battle over the removal of the palms last November. A federal court judge ruled against their request for a temporary restraining order barring cutting down the trees. The judge ruled that residents do not have the property rights to deny the City and FAA the ability to cut down the trees in their right-of-way.
“My clients are asking for a report of the calculations on how exactly these trees, located 5 miles west of the airport and only 70-feet high, can disturb pilot’s visibility,” said attorney Applbaum previously.
The attorney said the reason why the judge denied his request for a TRO was that she found that “my clients did not own the trees, that the City owns the trees, and they can do whatever they want with them. However, some case law has been established that states that even though [trees] are on City property, they’re owned by the residents. So we’re still digging into it all and doing more research. Probably we’re going to be filing a case in state court, or amending the federal complaint. The good news is the trees are safer now.”
Applbaum could not be reached for further comment.
