06/10/2022
Policy schmolicy. Or so said the judge.
The pepper trees’ day in court was merely for show. The judge had already made up his mind before the trial started, but let the show go on, albeit with his constant interruptions and arguments overshadowing anything that our attorney could say. In the end, His Honor decided that the City does not have to follow Council Policy 900-19, the Public Tree Protection Policy, because he called it an “unfunded mandate.” He also made some noise about there being no case law to say that an official Council policy, for which a hearing was held, a vote taken, and the policy entered into the City’s Big Book of Policy Stuff, has the weight of an ordinance. (Side effect: tomorrow all City employees may go out and charge up a storm on their City-issued credit cards, since the policy limiting them to $25 purchases for City business only is, well, just a policy and not enforceable. Have fun on us taxpayers!)
The judge said he was loathe to set the precedent that a policy had the weight of law. He also opined that if the policy was upheld as written, that “hundreds of thousands of trees” throughout the City would qualify for protection, and how absurd would that be?
It was all very wonky. But, for the record, and IN the record, is the following.
Brian Widener, the so-called City Forester, testified that he would much rather save a tree than remove a tree. But then he testified that when evaluating the condition of the 37 California Pepper trees in Kensington, he only looked a couple of trees, for which there is no record of inspection in the evidence, and judged the condition of the entire population of pepper trees as being deteriorated, diseased, damaged and at their end-of-life by looking at photographs. He then testified that looking at photographs was not sufficient to determine the health of a tree! Widener said that for a tree to be considered for Heritage tree protection, it has to be old. But then he said he can’t designate it as a Heritage tree because, wait for it, it’s old! After claiming that some of the trees had to be removed because of damage to adjacent sidewalks, when shown photos of very nice sidewalks next to the very trees he destroyed, his response was that if he squinted hard enough, he could see some damage.
We learned through the evidence that the City removes more trees in a year than it plants. We learned that prior to Widener taking on the job of City Forester almost 5 years ago, that the City had designated 400-500 trees for protected status. (The fact that they don’t have an exact number is an indication that they don’t really have a database to refer to, and the number is just a guess.) Since Widener has been in the job, at least 20 Conserve-a-Tree nominations have been submitted to the City. And of that number, only two made it as far as the Community Forest Advisory Board (CFAB), where staff (read: Widener) recommended against designation. So in his 5 years, the majority of Conserve-a-Tree nominations, including the 3 we submitted, have been summarily discarded without review by the CFAB, and ZERO trees have obtained protected status. As far as Widener is concerned, the policy doesn’t apply to him and he needn’t waste any time on processing nominations.
We didn’t have to squint very hard at all to see why the City does not want to give mature trees protected status. They told us themselves in their opening brief. The City thinks that if they have to protect mature, historic trees, then down the road, when they want do something like dig up the parkways to perform undergrounding construction, the pesky, protected trees pose a CEQA problem for them. Trees designated as Heritage trees for not only their age, but also a connection to some historic event, building, district or were planted by a historically significant individual, as our Kensington peppers do, have the status of an historical resource under the State’s environmental laws. The damn trees would cause them to have to actually follow the State’s CEQA laws, conduct a real environmental analysis (instead of exempting the project from CEQA), and redesign the project to preserve the trees.
The California Environmental Quality Act (CEQA) is the principal statute mandating environmental assessment of projects in California. If an historical or other environmental resource is present in a project area, then mitigation measures must be undertaken to protect and preserve those resources. CEQA requires public lead agencies to impose feasible mitigation measures as part of the approval of a “project” in order to substantially lessen or avoid the significant adverse effects of the project on the physical environment. Cutting down a 110 year old California Pepper tree to make room for an above ground utility box would be an example of a public agency NOT mitigating or avoiding environmental damage. But it sure is expedient to just cut them down instead of altering the design.
Avoiding CEQA is the primary motivation of the Mayor’s office to give their employees the leeway to ignore the Council policy and do as they please. So if you lose your historic shade tree, just be comforted by the idea that someday, somewhere a developer or SDG&E won’t have to slow their roll in order to protect your tree.
All the talk in the City’s Climate Action Plan about resiliency and increasing the urban tree canopy is just talk. Echoing the judge, the CAP is an unfunded mandate. There’s no money for planting enough trees to make a difference, much less anything in the budget to protect mature shade trees. There’s plenty of money in there, though, to cut down trees. More trees than they plant each year.
And any talk of “Climate Justice” or “Climate Equity” is more of the same bu****it. The City loves their PR stunts when the Mayor plants a tree in an “underserved” neighborhood. But in order for there to be any real, meaningful climate equity, our State legislators must make changes to CEQA to make it enforceable BY THE STATE on municipalities and other local governments and agencies. Relying on individual citizens or community groups to raise the funds for a lawsuit to enforce the environmental laws inherently means that people in underserved neighborhoods, people with lower incomes scraping by on minimum wage, people without college educations working three jobs who don’t have the time to read up on the law, or people who have never heard of CEQA are not equipped to sue anybody, much less the City of San Diego. People in places like Barrio Logan, San Ysidro, and Paradise Hills will have to continue to put up with poor air quality, loss of environmental, historical and cultural resources, loss of wetlands and open space, increases in noise, pollution and overcrowding simply because they are in no position to file a lawsuit. So, once again, without a State-funded enforcement mechanism, only the affluent, connected populace can afford a chance at protecting their neighborhood’s environment.
Back to our trees… we have more cards up our sleeves and will pursue other avenues of protection. What can you do to help? Start contacting your State legislators about creating a true climate justice system that does not require you and me to fund a lawsuit in order to enforce the law. Start asking your local elected officials why they are not allocating enough in their budgets to actually grow and protect the urban canopy. Start grooming activist friends, family and neighbors to run for public office. Start checking the environmental report cards for people holding elected office. Begin with https://envirovoters.org/ and https://www.sierraclub.org/california/report-cards.
Vote for candidates with strong environmental voting records. And, above all, when they come for your tree, remind them of what the City’s web site has to say about tree removal: “If the City determines the tree must be removed in order to repair other infrastructure, concurrence of the abutting property owner is required.”
Then, don’t concur.
