A lawsuit against the City challenging the cutting down of palm trees on Newport Avenue considered a possible threat to incoming aircraft has been dismissed in court as “frivolous.”
Additionally, San Diego City Attorney Mara W. Elliott said the City “will petition the court to order neighbors Tracy and John Van de Walker to reimburse the City for the costs it incurred defending itself.”
Those actions have led to an outcry from some residents characterizing the City’s decision to remove the trees as “absurd,” “discouraging,” and “appalling.” Opponents of the tree removal also described the City’s decision to sue the Van de Walkers as “heavy-handed” and a “waste of taxpayers’ money.”
Recently, Elliott announced that neighbors’ lawsuit over the removal of the Newport palms had been dropped.
“After a hearing with the judge, the plaintiffs chose to dismiss their case without briefing the matter on its merits, as it was evident they had no valid basis for their claims,” said Elliott. “Plaintiffs filed a Request for Dismissal in San Diego Superior Court on Jan. 27. 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.”
In the wake of their lawsuit’s dismissal, the Van de Walkers said they have been getting scam phone calls from people trying to collect on behalf of the City Attorney’s office. They added they have had their lawyers document and investigate those phone calls.
“We wish the City Attorney would have had an open dialogue with us on the palm tree issue,” the OB couple said. “Never did they respond to us, which forced this issue into court.”
“Our clients, John and Tracy Van de Walker instructed its legal team to dismiss its writ of mandate without prejudice and are exploring other options, both legal and political,” reacted attorney Marc Applbaum of The Midway Law Firm. “The negative, slanderous, and threatening press statements by the City Attorney’s Office we believe is an act of hubris that could be the fuel in the filing of a class-action lawsuit against the FAA, City of San Diego, and its forester, Brian Widener, that has zero interest in preserving or protecting the beauty of historic and majestic palm trees in San Diego.”
Local reaction to the dismissal of the Newport palms case has been sympathetic to the trees – and the Van de Walkers – for defending them.
“I find it appalling the city would consider this a frivolous lawsuit and ask for damages from the couple who sued to protect historic palms from being removed,” said Paul Grimes. “The Airport Authority and City mishandled this issue and lacked communication from the start. Either the FAA, Airport Authority, or City miscalculated the century-old, slow-growing palms would grow into the invisible plane of safety at a never-before-seen rate. The fact that the City only removed a few of the palms indicates the suit had merit and (the trees) did not require wholesale removal.”
“That is absolutely absurd, this was in no way a frivolous claim and brought to light the heavy-handed policies of the City,” argued Point Loma Realtor Catrina Russell. “Without the lawsuit, we would have no palms left. The public should be outraged at the City.”
“OBceans are right to question the City’s actions,” said OB Planning Board member Kevin Hastings, speaking for himself. “I believe the City’s M.O. is to remove all of our palm trees out of fear of liability and not wanting to maintain them. Recently, the building department started calling palm trees an invasive species here and telling applicants that they can’t plant their own, which contradicts the OB Community Plan and the municipal code. I’ve heard palms don’t really count as trees, but the citizens want them, they look great, and they aren’t harming anything. And the parrots love them. Ironically, City projects on their renderings have palm trees all over them.”
“It is incredibly discouraging to see our City Attorney continue to waste City resources by pursuing legal fees from community members who care about mature trees in their neighborhood,” said Peninsula Community Planning Board member Mandy Havlik, speaking on her own behalf. “The City and its forester created this toxic situation, and we could have avoided this altogether had they reached out and conducted community outreach and not cut down the five palm trees before the appeal process had expired.
“The City Attorney should utilize her time and resources better. Rather than retaliating against ladies who wanted to save their beloved palm trees, the City Attorney should spend her time on other more important and pressing issues impacting our community, like the 101 Ash Street deal or finding justice for the SDSU rape victim,” said Havlik
TREE TIMELINE
In 2022, City crews, with notice the night before, went out early on a Monday morning to Newport Avenue and Santa Barbara Street to remove more than a dozen palm trees requested by the Airport Authority, claiming the trees threatened to impair the visibility of airplanes.
But protesting OB neighbors, including Tracy and John Van de Walker, successfully blocked the immediate removal of all but one tree. Attorney Marc Applbaum was then retained to sue the City for attempting to block the emergency removal of the trees, arguing they were healthy, historic, and not a threat to aircraft visibility.
The dispute over the Newport palms began in 2021 when the Federal Aviation Administration and San Diego Airport Authority ordered the City to remove several tall palm trees because their height exceeded the safety limit, as required by federal law, according to City Attorney Mara W. Elliott stating the City notified Ocean Beach residents of the scheduled removal. She said John and Tracy Van de Walker subsequently sued the City in federal court to prevent the trees from being cut down, claiming violations of the California Environmental Quality Act. They then dismissed that suit and filed a new action in state court alleging the City cannot cut down the trees under the San Diego Municipal Code and Council Policy, added Elliott.
