Save Our Big Trees v. City of Santa Cruz , 194 Cal. Rptr. 3d 169 ( 2015 )

Filed 10/23/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
SAVE OUR BIG TREES, H041136
(Santa Cruz County
Plaintiff and Appellant, Super. Ct. No. CV178084)
v.
CITY OF SANTA CRUZ et al.,
Defendants and Respondents.
In 1976, the City of Santa Cruz (City) sought to protect its urban forest by
adopting the “Heritage Tree Ordinance,” which governs the protection of large trees and
trees having other significance. The City later adopted the “Heritage Tree Removal
Resolution,” which governs the removal of heritage trees. In 2013, the City amended its
Heritage Tree Ordinance and Heritage Tree Removal Resolution. The City concluded
that these amendments (the Project) were categorically exempt from the California
Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.)1 because
they assured the “maintenance, restoration, enhancement, and protection” of natural
resources and the environment.
Plaintiff Save Our Big Trees contends the amendments weakened existing heritage
tree protections such that the Project is not exempt from CEQA. Plaintiff sought a writ of
mandate directing the City to set aside its amendments for failure to comply with CEQA.
Plaintiff appeals from a judgment denying its writ petition.
1
Unspecified statutory references are to the Public Resources Code.
We find the City had the burden to demonstrate with substantial evidence that the
Project falls within a categorical exemption to CEQA. The City failed to meet that
burden. Therefore, we reverse and direct the trial court to issue a writ of mandate
requiring the City to set aside the 2013 amendments to the Heritage Tree Ordinance and
Heritage Tree Removal Resolution.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Heritage Tree Ordinance
Protection of heritage trees in the City began with the 1976 adoption of the
Heritage Tree Ordinance, which established a permit process governing the preservation
of heritage trees. In 1976, the Heritage Tree Ordinance defined “heritage tree” to mean
“[a] tree which has a trunk with a circumference of fifty (50) inches . . . or more
measured at twenty-four (24) inches above natural grade” or “[a] tree or grove of trees
designated by resolution of the City Council to be of special historical value or of
significant community benefit.”
In 1989, the Heritage Tree Ordinance’s protections were extended to “heritage
shrub,” and “heritage tree” was redefined to include those trees with horticultural
significance and those providing a valuable habitat. Later, “heritage tree” was again
redefined as a tree “growing on public or private property within the City limits” if (1) its
trunk had a circumference of at least 44 inches; (2) it had “historical significance” for
reasons “including but not limited to” the fact that it was commemorative, planted during
a particularly significant historical era, or marked the spot of a historical event; or (3) it
had “horticultural significance” for reasons “including but not limited to” the fact that it
was “[u]nusually beautiful or distinctive,” relatively old, of distinctive size or structure, a
rare or unusual species for the area, provided a valuable habitat, or had been “[i]dentified
by the City Council as having significant arboricultural value to the citizens of the City.”
2
B. The Heritage Tree Removal Resolution
In 1998, the City adopted the Heritage Tree Removal Resolution (resolution No.
NS-23,710), which established the “only circumstances” in which a heritage tree or shrub
could be “altered or removed.” Those circumstances were: “(1) The heritage tree or
heritage shrub has, or is likely to have, an adverse effect upon the structural integrity of a
building, utility, or public or private right of way; [¶] (2) The physical condition or health
of the tree or shrub, such as disease or infestation, warrants alteration or removal; or [¶]
(3) A construction project design cannot be altered to accommodate existing heritage
trees or shrubs.”
C. The Project
On October 22, 2013, the city council approved amendments to the Heritage Tree
Ordinance (ordinance No. 2013-18). The city council also adopted amendments to the
Heritage Tree Removal Resolution (resolution No. NS-28,706).2 We refer to these
actions collectively as the Project, as the parties agree the revisions constitute a “project”
to which CEQA applies unless it is exempt. (See San Lorenzo Valley Community
Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006)
139 Cal.App.4th 1356, 1373 (San Lorenzo); §§ 21065, 21080.)
1. The Heritage Tree Ordinance Amendments
The City amended the Heritage Tree Ordinance in various ways, including the
addition of a “purpose” section. Among other things, that section states that the purpose
of the Heritage Tree Ordinance is “to recognize, protect, optimize and responsibly
manage the community urban forest.” It also identifies ways in which trees “contribute
2
The City also amended a number of related ordinances and resolutions, including
an ordinance governing the trimming and removal of trees on public property and a
resolution establishing fees for permits to perform work affecting heritage trees.
However, plaintiff challenges only the amendments to the Heritage Tree Ordinance and
the Heritage Tree Removal Resolution.
3
beneficially to the urban environment and . . . to . . . the state’s climate action goals,”
including by “reduc[ing] heat buildup, noise and air pollutants”; “improv[ing] air quality,
reduc[ing] particulates, . . . provid[ing] oxygen”; and “providing erosion control.”
As amended, the Heritage Tree Ordinance (section 9.56.020) requires the
establishment of replanting requirements and deadlines for heritage tree alterations and
removals. The prior version of the Heritage Tree Ordinance required the establishment of
more general “mitigation requirements” and did not mention deadlines.
The Heritage Tree Ordinance amendments revised the definition of “heritage tree”
in a number of ways, three of which are relevant here. First, the amendments eliminated
references to (and protection of) shrubs. Second, the amendments provided trees can
acquire the “heritage” designation because of their historical significance only if
“designated by City Council Resolution as having historical significance, or listed on an
approved City Area Planning Document or designated for protection through an approved
zoning entitlement.” Third, the amendments provided trees can acquire the “heritage”
designation because of their horticultural significance only if “designated by City Council
Resolution as having horticultural significance.”
The prior Heritage Tree Ordinance (section 9.56.050) prohibited property owners
from allowing specified conditions to exist because they may be harmful to heritage trees.
The amendments added a new prohibited condition--“[p]hysically damaging any heritage
tree by way of topping, over-pruning, girdling, root loss, or poisoning of the heritage tree,
or any action which may cause death, destruction or injury to the heritage tree or which
places the heritage tree in a hazardous condition or in an irreversible state of decline.”
The amendments also enacted various revisions to the Heritage Tree Ordinance’s
penalty provisions (section 9.56.110), including the addition of a provision allowing the
City to deny a property owner who has violated the Heritage Tree Ordinance any
development approval or permit until all penalty fines and damages related to the
violation are paid and replanting requirements are fulfilled.
4
2. The Heritage Tree Removal Resolution Amendments
The City amended the Heritage Tree Removal Resolution’s standards for the
alteration or removal of heritage trees in two relevant ways.
First, it removed the provision allowing for removal of a heritage tree that “has, or
is likely to have, an adverse effect upon the structural integrity of a building, utility, or
public or private right of way” and replaced it with a provision allowing for removal of a
heritage tree that “has created or is likely to create an unreasonable and substantial
hardship for a public or private property owner, such as excessive degradation or damage
to real property, an unreasonable financial or economic burden, or an adverse effect on
personal health such as allergies or physical mobility.”
Second, the City introduced additional circumstances under which heritage non-
native invasive trees may be removed. The amended Hertiage Tree Ordinance defines
“non-native invasive species” as “any blue gum eucalyptus . . . or acacia species growing
within the city limits of Santa Cruz.” Under the amended Heritage Tree Removal
Resolution, two or more non-native invasive heritage trees growing on a single parcel
outside of a biotic resource area may be removed if: “(i) removal is required for
defensible space clearance; [¶] (ii) [the] trees are poorly structured or overcrowded; [¶]
(iii) [the] tree(s) are likely to cause personal injury or an unreasonable and substantial
hardship for a public or private property owner; or [¶] (iv) [the] trees are likely to be
invasive and outcompete native vegetation.” Two or more non-native invasive heritage
trees growing on a single parcel inside of a biotic resource area3 may be removed if one
3
For purposes of the amended Heritage Tree Removal Resolution, “biotic
resource area” means biotic resource area “as defined in the City’s General Plan or
protected by the City’s Zoning Ordinance, SCMC (Santa Cruz Municipal Code) Title 24,
including designated riparian corridors, regulated slope areas and/or within areas
requiring a coastal permit within the State Coastal Zone.”
5
of those four circumstances is satisfied and “a qualified biologist . . . [confirms] that
removal or significant alteration will not adversely impact or degrade existing habit.”
C. Administrative Proceedings
The City’s parks and recreation commission (the Commission) began considering
changes to the Heritage Tree Ordinance after the position of urban forester was reduced
from a full-time position to a three-quarter position in early 2009. With the goal of
reducing the urban forester’s workload, the parks and recreation staff (Staff)
recommended excluding from the Heritage Tree Ordinance heritage shrubs and non-
native invasive species (blue gum eucalyptus and acacia) living outside the biotic
resource area. The Commission created a subcommittee to consider amendments to the
Heritage Tree Ordinance.
In addition to excluding non-native invasive species living outside the biotic
resource areas from the Heritage Tree Ordinance, the subcommittee recommended
eliminating or revising the provisions designating trees with historical or horticultural
significance as heritage trees. The latter recommendation was based on the
subcommittee’s view that those subdivisions were subjective. Staff opposed the latter
recommendation and opined that “[t]he change would . . . trigger a need for further
review and approvals including CEQA and an environmental determination.”4 The
subcommittee’s proposed revisions were discussed at a May 2009 commission meeting.
At that meeting, the City fire chief spoke in support of excluding non-native invasive
species from the Heritage Tree Ordinance due to the fire hazard those species pose.
The Commission considered revising the Heritage Tree Ordinance at two
additional meetings in 2009; it next addressed the issue in November 2011. At that time,
4
Staff’s use of the phrase “the change” renders its comment ambiguous. It is
unclear whether Staff believed only eliminating the historical and horticultural
significance provisions would require CEQA review or if it believed merely revising
those provisions also would trigger CEQA.
6
Staff opined that the proposed exclusion of non-native invasive species living outside
biotic resource areas from the Heritage Tree Ordinance “would trigger significant
environmental review and possibly an EIR [(environmental impact report)].”
In June 2012, Staff informed the Commission it would cost $52,000 to perform “a
defensible environmental review” of the proposal to exclude non-native invasive trees
from the Heritage Tree Ordinance because the City would need to determine the “number
of non-native trees that could hypothetically be removed.” Staff recommended the
Commission not move forward with the proposed exclusion of non-native invasive
species from the Heritage Tree Ordinance. The Commission disagreed, electing to retain
the proposed provision excluding non-native invasive species from the Heritage Tree
Ordinance’s definition of heritage tree.
Accordingly, Staff devised what it described as “an alternative approach to include
the removal of heritage size non-native invasive species that satisfies environmental
review requirements.” Rather than excluding non-native invasive trees from the
definition of heritage trees in the Heritage Tree Ordinance, Staff proposed amending the
Heritage Tree Removal Resolution to allow for the removal of non-native invasive
heritage trees growing outside biotic resource areas and those growing inside biotic
resource areas with confirmation from a qualified biologist that removal would not
adversely impact or degrade existing habitats. Staff also proposed amending the Heritage
Tree Removal Resolution to permit the removal of a heritage tree that “has created or is
likely to create an unreasonable and substantial hardship for a private property owner
such as, excessive degradation or damage to real property, an unreasonable financial or
economic burden, or an adverse effect on personal health such as allergies or physical
mobility.” Staff characterized the later proposed revision as giving “Commissions and
City Council . . . increased discretion.”
Staff concluded that, as modified, the Project was exempt from CEQA under the
categorical exemptions set forth in sections 15307 and 15308 of the CEQA guidelines
7
(Guidelines).5 Those exemptions apply to actions taken to assure the maintenance,
restoration, or enhancement of a natural resource or the environment. (CEQA
Guidelines, §§ 15307, 15308.) In support of that conclusion, Staff noted that while the
proposed revisions to the Heritage Tree Removal Resolution “may allow for the removal
of additional non-native trees,” they “would not necessarily have the potential for causing
a cumulative impact or significant effect on the environment” because “[t]he City is not
requiring the removal of non-native invasive tree species[,] . . . [and] removing large trees
is frequently financially limiting [such that] it is unlikely that the probability of large
numbers of trees being removed would increase.”
On January 14, 2013, the Commission voted to recommend the proposed Heritage
Tree Ordinance amendments and the Heritage Tree Removal Resolution amendments to
the city council.
The city council considered the Project at its September 24, 2013 meeting. At that
meeting, the City’s urban forester explained that blue gum eucalyptus and acacia trees are
considered invasive because “[t]hey can out compete native habitats, and they are very
prolific about propagating.” She also noted that those species “can contribute to
dangerous fire conditions because of the fuel load that’s produced by these trees, the rate
of growth, the fact that the embers can . . . smolder on the leaves and start new fires.”
Members of the public spoke at the meeting, including an individual representing
plaintiff, who argued CEQA review was necessary. Those who opposed the Project
largely expressed the view that it would be too easy to cut down heritage trees under the
proposed revised scheme. They said blue gum eucalyptus trees benefit the environment
5
The term “CEQA Guidelines” refers to the regulations for the implementation of
CEQA authorized by the Legislature (Pub. Resources Code, § 21083), codified in title 14,
section 15000 et seq. of the California Code of Regulations, and “prescribed by the
Secretary of Resources to be followed by all state and local agencies in California in the
implementation of [CEQA].” (CEQA Guidelines, § 15000.)
8
by serving as wind breaks; providing habitats for butterflies, birds, and other wildlife; and
removing carbon dioxide from the air. Those who spoke in favor of the Project addressed
their desire to remove blue gum eucalyptus trees because they crowd out native plants
and trees and generate a significant amount of debris, making them difficult to maintain
and a fire hazard. The fire chief spoke about the fire danger associated with eucalyptus
trees. He explained that “[t]he big issues with the eucalyptus are the litter and the volume
of litter beneath the tree that doesn’t get cleaned up. And when that catches fire, it burns
very hot, and it’s very oily.” With respect to defensible space, the fire chief explained
that the concern generally is not with removing trees but with “cleaning out the
undergrowth.”
Also on September 24, 2013, counsel representing plaintiff sent the city council a
letter arguing the Project was not exempt from CEQA and a letter from Travis Longcore,
Ph.D., a geographer, ecologist, and professor of bioresource management, environmental
impact analysis, field ecology, and environmental science. In his letter to the city
council, Dr. Longcore opined that the Project would result in the removal of trees and
shrubs, which could lead to the destruction of bird nests and could impact storm water
runoff, carbon sequestration, and energy consumption. He also noted that eucalyptus
trees provide a habitat for butterflies and birds.
At an October 22, 2013 meeting, the city council again considered the Project.
Staff presented three options for amending the Heritage Tree Removal Resolution.
Option No. 1 was Staff’s original proposal. It included “changing [the] restrictions for
non-native invasive trees” and “a damage or a hardship clause” permitting the 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.” Option No. 2 was “almost identical to the
existing policy,” but was a “little bit broader,” according to the urban forester. It did not
9
include the additional criteria allowing for the removal of non-native invasive trees, “so
blue gum and acacia would be treated as any other heritage tree,” and it did not allow for
the removal of a heritage tree based on unreasonable financial or economic burden.
Option No. 3, described as “a compromise” between options Nos. 1 and 2, included the
additional criteria allowing for the removal of non-native invasive trees, but did not allow
for heritage tree removal due to unreasonable financial or economic burden.
With respect to the CEQA issue, one councilmember, who ultimately voted
against the Project, stated: “I guess what I’m thinking about this is that it’s a weird sort
of circular thing because for me, the only reason to change the ordinance is to allow
people to cut down trees more, you know, if we want to prioritize human uses, whether
it’s allergies, or protecting property, or whatever. And I think that’s a reasonable thing to
do. I mean, you know, that’s a reasonable judgment call on the part of the Council and
the community. [¶] But then I understand that if we’re allowing more people to cut down
more trees, that we’re in trouble with the Environmental Quality Act. So, you know, I
feel kind of stuck.”
The city council approved the Heritage Tree Ordinance amendments and option
No. 1 for amending the Heritage Tree Removal Resolution. The city council adopted and
approved Staff’s determination that the Project was exempt from CEQA.
The City filed a notice of exemption from CEQA on October 24, 2013.
D. Judicial Proceedings
Plaintiff filed a petition for writ of mandate on November 1, 2013. The trial court
denied the petition, ruling that substantial evidence supported the city council’s
determination that the Project was exempt under CEQA Guidelines sections 15307 and
15308, and entered judgment in favor of the City. Plaintiff timely appealed.
10
II. DISCUSSION
A. Overview of CEQA
“ ‘[T]he overriding purpose of CEQA is to ensure that agencies regulating
activities that may affect the quality of the environment give primary consideration to
preventing environmental damage.’ ” (Save Our Carmel River v. Monterey Peninsula
Water Management Dist. (2006) 141 Cal.App.4th 677, 687.) The statute and its
implementing regulations, the CEQA Guidelines, “prescribe[] review procedures a public
agency must follow before approving or carrying out certain projects.” (Berkeley
Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1091-1092 (Berkeley).)
CEQA review procedures can be viewed as a “ ‘three-tiered process.’ ” (San
Lorenzo, supra, 139 Cal.App.4th at p. 1372.) The first tier requires an agency to conduct
a preliminary review to determine whether CEQA applies to a proposed project. (Ibid.)
If CEQA applies, the agency must proceed to the second tier of the process by conducting
an initial study of the project. (Id. at p. 1373.) Among the purposes of the initial study is
to help “to inform the choice between a negative declaration and an environmental
impact report (EIR).” (Ibid.) If there is “no substantial evidence that the project or any
of its aspects may cause a significant effect on the environment,” the agency prepares a
negative declaration. (Guidelines, § 15063, subd. (b)(2).) Alternatively, if “ ‘the initial
study identifies potential significant effects on the environment but revisions in the
project plans “would avoid the effects or mitigate the effects to a point where clearly no
significant effect on the environment would occur” and there is no substantial evidence
that the project as revised may have a significant effect on the environment, a mitigated
negative declaration may be used.’ ” (Architectural Heritage Assn. v. County of
Monterey (2004) 122 Cal.App.4th 1095, 1101.) Finally, if the initial study uncovers
“substantial evidence that any aspect of the project, either individually or cumulatively,
may cause a significant effect on the environment” (CEQA Guidelines, § 15063, subd.
11
(b)(1)), the agency must proceed to the third tier of the review process and prepare a full
EIR. (San Lorenzo, supra, at p. 1373.)
This case concerns the first tier of review--whether the Project is subject to CEQA
review. Several categories of projects are statutorily exempt from CEQA review for
policy reasons. (Berkeley, supra, 60 Cal.4th at p. 1092, citing § 21080, subd. (b)(1)-
(15).) Other classes of projects are “ ‘categorically exempt’ ” from CEQA review
because the Secretary of the Natural Resources Agency “ ‘has found’ . . . [they] ‘do not
have a significant effect on the environment.’ ” (Berkeley, supra, 60 Cal.4th at p. 1092;
CEQA Guidelines, § 15300; § 21084, subd. (a).)
Among the categorical exemptions is the class 7 exemption for “actions taken by
regulatory agencies as authorized by state law or local ordinance to assure the
maintenance, restoration, or enhancement of a natural resource where the regulatory
process involves procedures for protection of the environment.” (CEQA Guidelines, §
15307.) Another categorical exemption, the class 8 exemption, is very similar; it exempts
“actions taken by regulatory agencies, as authorized by state or local ordinance, to assure
the maintenance, restoration, enhancement, or protection of the environment where the
regulatory process involves procedures for protection of the environment.” (Id., §
15308.)
“[A categorical] exemption can be relied on only if a factual evaluation of the
agency’s proposed activity reveals that it applies.” (Muzzy Ranch Co. v. Solano County
Airport Land Use Com. (2007) 41 Cal.4th 372, 386.) “[T]he agency invoking the
[categorical] exemption has the burden of demonstrating” that substantial evidence
supports its factual finding that the project fell within the exemption. (Ibid.)
B. Standard of Review
“When faced with a challenge to an agency’s exemption determination, the court
considers whether the agency proceeded in the manner required by law and whether its
determination is supported by substantial evidence.” (San Lorenzo, supra, 139
12
Cal.App.4th at p. 1381.) The interpretation of an exemption presents a question of law
subject to our independent review. (Id. at pp. 1382, 1387.) “But ‘the substantial
evidence test governs our review of the [agency’s] factual determination that a project
falls within a categorical exemption.’ ” (Id. at p. 1382.)
In the CEQA context, substantial evidence “means enough relevant information
and reasonable inferences from this information that a fair argument can be made to
support a conclusion, even though other conclusions might also be reached.” (CEQA
Guidelines, § 15384, subd. (a).) Substantial evidence includes “facts, reasonable
assumptions predicated upon facts, and expert opinion supported by facts” (id., subd.
(b)), but not “[a]rgument, speculation, unsubstantiated opinion or narrative, evidence
which is clearly erroneous or inaccurate, or evidence of social or economic impacts
which do not contribute to or are not caused by physical impacts on the environment.”
(Id., subd. (a).)
C. The Scope of the Class 7 and Class 8 Exemptions
Our first task is to independently interpret the class 7 and class 8 exemptions.6
Specifically, at issue here is the meaning of the phrase “actions . . . to assure the
maintenance, restoration, or enhancement” as it is used in those exemptions.
6
The two exemptions, set forth in full below, are nearly identical. Class 7 applies
actions to assure the maintenance, restoration, or enhancement of a natural resource;
class 8 applies actions to assure the maintenance, restoration, enhancement, or protection
of the environment. For simplicity, we consider the exemptions together, asking whether
the Project constitutes an action “to assure the maintenance, restoration, or enhancement”
of the environment.
The class 7 exemption provides, in full: “Class 7 consists of actions taken by
regulatory agencies as authorized by state law or local ordinance to assure the
maintenance, restoration, or enhancement of a natural resource where the regulatory
process involves procedures for protection of the environment. Examples include but are
not limited to wildlife preservation activities of the State Department of Fish and Game.
Construction activities are not included in this exemption.” (CEQA Guidelines, §
15307.)
(continued)
13
Case law is instructive as to which actions fall within these exemptions, and which
do not. The prohibition of an activity that evidence shows is associated with
“environmental problems, [such as] the contamination of farmland,” constitutes an action
to assure “protection of the environment.” (Magan v. County of Kings (2002) 105
Cal.App.4th 468, 476 [ordinance phasing out “the land application of sewage sludge” fell
within class 8 exemption].) By contrast, actions that remove existing wildlife
protections, authorize and regulate hunting, or relax existing environmental safeguards do
not assure the maintenance, restoration, or enhancement of the environment. (See
Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 125 (Mountain
Lion) [action that “removes rather than secures . . . protections [of animal species]” does
not fall within class 7 or class 8 exemption]; Wildlife Alive v. Chickering (1976) 18
Cal.3d 190, 205 (Chickering) [setting of hunting seasons does not fall within class 77
exemption because such an action “cannot fairly or readily be characterized as a
preservation activity in a strict sense”]; International Longshoremen’s &
Warehousemen’s Union v. Board of Supervisors (1981) 116 Cal.App.3d 265, 276
(International Longshoremen’s) [amendment doubling the allowable emissions of gases
the Legislature has determined are dangerous substances did not fall within class 7 or
class 8 exemption8].)
The class 8 exemption provides, in full: “Class 8 consists of actions taken by
regulatory agencies, as authorized by state or local ordinance, to assure the maintenance,
restoration, enhancement, or protection of the environment where the regulatory process
involves procedures for protection of the environment. Construction activities and
relaxation of standards allowing environmental degradation are not included in this
exemption.” (CEQA Guidelines, § 15308.)
7
Chickering involved a prior version of the class 7 exemption that was
substantially similar to the current class 7 exemption. (Chickering, supra, 18 Cal.3d at p.
204; CEQA Guidelines, § 15307.)
8
International Longshoremen’s applied prior versions of the class 7 and class 8
exemptions that were substantially similar to the current class 7 and class 8 exemptions.
(continued)
14
These legal guideposts indicate that, consistent with its plain language, the phrase
“actions . . . to assure the maintenance, restoration, or enhancement” embraces projects
that combat environmental harm, but not those that diminish existing environmental
protections. The parties acknowledge as much, recognizing that the Project is exempt
only if it does not weaken existing heritage tree protections. However, as discussed
below, they dispute how this court should determine the Project’s impact.
D. Substantial Evidence Does Not Support the City’s Determination That the
Project is Categorically Exempt From CEQA
According to the City, we must look at the Project “as a whole” to determine
whether it will strengthen or weaken existing heritage tree protections. By contrast,
plaintiff argues that if the Project will have any “unfavorable” impact on a natural
resource or the environment then it is not exempt, regardless of whether it will also have
other, “favorable” impacts.
The CEQA Guidelines’ definition of “project” as meaning “the whole of an
action” appears to provide at least some support for the City’s view that only the
Project’s overall impact matters. (CEQA Guidelines, § 15378.) However, the City does
not cite to that provision, nor to any other authority, to support its position. Plaintiff
relies on the Supreme Court’s conclusion in Chickering that the class 7 exemption did not
apply to an action with “the potential for a significant environmental impact, both
favorable and unfavorable.” (Chickering, supra, 18 Cal.3d at p. 206 [“[w]hen the impact
[of a project] may be either adverse or beneficial, it is particularly appropriate to apply
CEQA which is carefully conceived for the purpose of increasing the likelihood that the
environmental effects will be beneficial rather than adverse”].) But, in Berkeley, the
Supreme Court distanced itself from that portion of Chickering, describing it as
(International Longshoremen’s, supra, 116 Cal.App.3d at p. 276; CEQA Guidelines, §§
15307, 15308.)
15
“unnecessary to resolve the case . . . [and] summary.” (Berkeley, supra, 60 Cal.4th at p.
1107.)
We need not decide which approach is correct. Even if we consider the full
complement of revisions together, as the City urges, substantial evidence does not
support the City’s determination that the Project constitutes an action “to assure the
maintenance, restoration, or enhancement” of the environment for the reasons discussed
below. We begin by discussing each aspect of the Project separately, before addressing
whether--taken together--they strengthen or weaken existing heritage tree protections.
1. The Heritage Tree Ordinance Amendments
With respect to the Heritage Tree Ordinance amendments, the City concedes that
the revisions mean trees can no longer be designated as heritage “based on little more
than a whim,” such as a person’s decision to plant a tree as a “commemorative” to a
deceased pet. Instead, as revised, the Heritage Tree Ordinance requires a city council
resolution before a tree can acquire the “heritage” designation because of its historical or
horticultural significance. According to the City, “[r]eplacing subjective standards with
objective and scientific criteria does not weaken tree protections.” But the implication of
the City’s own brief is that, under the amended Heritage Tree Ordinance, a
“commemorative” tree planted for a deceased pet will not acquire heritage tree
protection. Thus, the Heritage Tree Ordinance amendments remove protection from such
trees, much like the delisting at issue in Mountain Lion removed protection for Mojave
ground squirrels.
The City emphasizes that other revisions to the Heritage Tree Ordinance
strengthen the protection of heritage trees. For example, the Heritage Tree Ordinance
amendments require the imposition of deadlines for the planting of new trees when a
heritage tree is removed; add new restrictions on the treatment of heritage trees to protect
them from death, destruction, or injury; and add additional penalties for property owners
who violate the Heritage Tree Ordinance. Other revisions merely clarify the Heritage
16
Tree Ordinance, the City points out. For instance, as revised, the Heritage Tree
Ordinance specifies that measuring standards defined by the International Society of
Arboriculture should be used in determining whether a tree meets the heritage tree size
requirement.
2. The Heritage Tree Removal Resolution Amendments
The Heritage Tree Removal Resolution amendments made two significant changes
to the City’s heritage tree scheme. First, the amendments introduced new justifications
for removing any heritage tree, including that the tree “has created or is likely to create . .
. an unreasonable financial or economic burden [on a public or private property owner]”
or “has created or is likely to create . . . an adverse effect on [the] personal health [of a
public or private property owner] such as allergies or physical mobility.” The urban
forester and city council members recognized that these new justifications relaxed the
limitations on removing heritage trees. The urban forester explained that her ability to
consider a particular heritage tree removal permit application would be “broader” under
the amended Heritage Tree Removal Resolution because she could “consider
unreasonable financial or economic burdens.” One councilmember described the new
justifications as “allow[ing] people to cut down trees more” and “prioritiz[ing] human
uses, whether it’s allergies, or protecting property, or whatever.” Another
councilmember characterized the resolution as “loosening” the heritage tree removal
criteria.
Second, the amended Heritage Tree Removal Resolution introduced additional
justifications for removing two or more non-native invasive heritage trees growing on a
single parcel. For example, the amended Heritage Tree Removal Resolution permits the
removal of two or more non-native invasive heritage trees growing on a single parcel
outside of a biotic resource area if the trees “are likely to be invasive and outcompete
native vegetation.” Record evidence shows non-native invasive heritage trees are, by
definition, invasive because they outcompete native vegetation. As Staff explained to the
17
city council in a June 2013 agenda report, acacia and blue gum eucalyptus trees “were
isolated because they grow at a high rate of speed and can spread prolifically, out-
competing the vegetation in native habitats.” Accordingly, the amended Heritage Tree
Removal Resolution appears to effectively remove heritage tree protection from groves
of non-native invasive trees growing outside of a biotic resource area. One
councilmember reached the same conclusion, noting that the resolution “lists [as] one of
the criterions for cutting down presumably the entire grove [of eucalyptus] . . . that trees
are likely to be invasive and out compete native vegetation. [¶] Well, the trees have
already been described as non-native invasive trees, so it would appear purely on the
[resolution] . . . that any of the non-native invasive trees could be cut down based on
being invasive and non-native because by definition they’re invasive and non-native.”
The amended Heritage Tree Removal Resolution expands opportunities to cut
down protected trees. Stated differently, it relaxes existing protections for heritage trees,
just as the amendment at issue in International Longshoremen’s relaxed emissions
standards. Both the amended Heritage Tree Removal Resolution’s plain language and
the record evidence discussed above support that conclusion.
The City does not deny that the amended Heritage Tree Removal Resolution
allows for the removal of heritage trees in circumstances where removal was not
previously permitted. Instead, the City argues that its intent is not to “encourage” tree
removal. But that is irrelevant. In Mountain Lion, the Fish and Game Commission did
not encourage the killing of Mojave ground squirrels, it merely took the species off the
threatened species list. Nevertheless, our Supreme Court concluded that, because the
action “remove[d] rather than secure[d] . . . protections, the categorical exemption for
actions assuring the maintenance, preservation or enhancement of a natural resource set
forth in sections 15307 and 15308 of the Guidelines [did] not apply.” (Mountain Lion,
supra, 16 Cal.4th at p. 125.) Likewise, in Chickering the Fish and Game Commission did
18
not encourage the hunting of black bears, it merely allowed it, an action held not to be
exempt.
The City further argues that, in practice, the amended Heritage Tree Removal
Resolution will not result in more heritage tree removals because (1) an applicant must
file an application for a heritage tree removal permit (the granting of which is subject to
appeal), (2) the urban forester stated she will continue to evaluate removal permit
applications from an arboricultural and fact-based perspective, and (3) tree removal is
costly. The City goes so far as to suggest the revisions it spent years formulating were
not necessary. In support of its argument, the City notes plaintiff has not cited any
evidence that the amended Heritage Tree Removal Resolution will “encourage or require
the removal of any one particular tree or group of trees” or that such removal would
“constitute a significant environmental impact.”
We are unpersuaded by this attempt to cloak the amended Heritage Tree Removal
Resolution with the protection of the class 7 and class 8 exemptions for three reasons.
First, because the City is invoking the class 7 and class 8 exemptions, it bears the
burden to demonstrate with substantial evidence that the Project constitutes an action to
assure the maintenance, restoration, or enhancement of the environment. (Muzzy Ranch
Co. v. Solano County Airport Land Use Com., supra, 41 Cal.4th at p. 386.) Plaintiff
bears no burden to show the Project will degrade the environment or deplete a natural
resource, as the City implies.
Second, the question before us is not whether the Project will have a significant
effect on the environment but whether substantial evidence supports the determination
that it will assure the maintenance, restoration, or enhancement of the environment. In
the past, our Supreme Court appeared to suggest that whether a project is categorically
exempt turns on whether it may have a significant effect on the environment. For
instance, in Chickering, the court noted that because “[t]he secretary is empowered to
exempt only those activities which do not have a significant effect on the environment”
19
(Chickering, supra, 18 Cal.3d at p. 205), “[i]t follows that where there is any reasonable
possibility that a project or activity may have a significant effect on the environment, an
exemption would be improper.” (Id. at p. 206.) The court echoed that point in Mountain
Lion, stating “a categorical exemption represents a determination by the Secretary that a
particular project does not have a significant effect on the environment”; “[i]t follows that
an activity that may have a significant effect on the environment cannot be categorically
exempt.” (Mountain Lion, supra, 16 Cal.4th at p. 124.) However, the court recently
characterized those statements as “tangential,” “unnecessary,” and “summary.”
(Berkeley, supra, 60 Cal.4th at pp. 1107, 1109.) The Berkeley majority rejected the
contention that “a showing of a fair argument of a potential environmental effect
precludes application of all categorical exemptions.” (Id. at p. 1102.) Thus, under
Berkeley, whether the Project will have a significant effect on the environment is not the
standard for determining whether it falls within a categorical exemption. Here, the
standard is whether substantial evidence supports the determination that the Project will
assure the maintenance, restoration, or enhancement of the environment. Even assuming
the amended Heritage Tree Removal Resolution will not actually result in additional tree
removals (despite allowing for them), that does not render it an action to assure the
maintenance, restoration, or enhancement of the environment.
Third, to the extent the number of likely tree removals is relevant, the City has
failed to show the amended Heritage Tree Removal Resolution will not increase that
number. Common sense dictates that permits to remove heritage trees under the
circumstances introduced by the amended Heritage Tree Removal Resolution can and
will properly be granted by the urban forester. As one councilmember put it, “if you’re
going to cut down trees because of allergies, then you’re going to have more trees cut
down because that’s different from how it was before. So, you know, whether we think
that’s a good idea or not, in terms of trying to figure out whether it would result in more
trees being cut down, that seems pretty clear.” And members of the public expressed a
20
desire to remove heritage blue gum eucalyptus trees at the city council meeting; it would
be speculative to conclude they cannot afford to do so. (CEQA Guidelines, § 15384,
subd. (a) [substantial evidence does not include speculation].)
3. The City Failed to Carry its Burden to Demonstrate the Project is an
Action to Assure the Maintenance, Preservation, or Enhancement of
the Environment
Viewed “on the whole,” as the City says is proper, the Project (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, it enacted a scheme
that protects fewer heritage trees more effectively. “Because [the Project] removes rather
than secures . . . protections” from some undefined number of heritage trees, “the
categorical exemption[s] for actions assuring the maintenance, preservation or
enhancement of a natural resource [or the environment] set forth in sections 15307 and
15308 of the Guidelines do[] not apply.” (Mountain Lion, supra, 16 Cal.4th at p. 125.)
The City’s replanting requirement--under which every heritage tree removed with
City approval must be replaced by three 15 gallon trees or one 24 inch size boxed
specimen tree--does not alter our conclusion. The City identifies no evidence that those
replacement trees will contribute beneficially to the urban environment in the same way
as the removed heritage tree by, for example, storing the same amount of carbon.
Accordingly, the City has failed to carry its burden to demonstrate with substantial
evidence that the Project will assure the maintenance, restoration, or enhancement of the
environment. Therefore, substantial evidence does not support application of the class 7
and class 8 exemptions.
III. DISPOSITION
The judgment is reversed. The trial court is directed to grant plaintiff’s petition
and to issue a writ of mandate directing the City of Santa Cruz to set aside (1) its
21
adoption of the Heritage Tree Ordinance amendments (ordinance No. 2013-18) and the
Heritage Tree Removal Resolution amendment (resolution No. NS-28,706) and (2) its
October 24, 2013 notice of exemption. Plaintiff is awarded its costs on appeal.
22
Walsh, J.*
WE CONCUR:
Rushing, P.J.
Elia, J.
Save Our Big Trees v. City of Santa Cruz et al.
H041136
*
Judge of the Santa Clara County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
Trial Court: Santa Cruz County Superior Court
Superior Court No. CV178084
Trial Judge: Hon. Paul M. Marigonda
Counsel for Plaintiff/Appellant: Wittwer Parkin
Save Our Big Trees William P. Parkin
Jonathan Wittwer
Counsel for Defendant/Respondent: Remy Moose Manley
City of Santa Cruz Sabrina V. Teller
Jeannie Lee
Atchison, Barisone, Condotti &
Kovacevich
John G. Barisone
Lauren C. Valk
Save Our Big Trees v. City of Santa Cruz et al.
H041136