San Diego’s famous chill-vibe beach community Ocean Beach is a laid-back affair, in most cases.
Unless, of course, you come for their palm trees. Then things get litigious.
The streets at the northern edge of Point Loma were laid out back in 1887, according to the Ocean Beach Mainstreet Association, but the community did not really take off till the teens, when the famous Wonderland beach-front amusement park opened.
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Sometime in the ’20s — the NINETEEN 20s — someone took it upon themselves to plant palm trees (fan palms, according to a lawsuit filed in October by a couple of locals) on and near Newport Avenue, between Santa Barbara and Guizot streets.
Ninety or so years later, John and Tracy Van de Walker in 2008 bought their home, just up the hill and steps from the beach, as the brochures say, and in 2021, those same trees are still flourishing, soaring some 60-70 feet into the air, looking almost comically thin in their reach to such heights.
In early October, the Van de Walkers received a somewhat impersonal note from Ralph Redman, San Diego manager of airport planning, saying the trees were doomed and would be removed “within the next few weeks.”
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To be clear, the trees near the Van de Walkers home are four blocks away and about 150 feet of elevation above the heart of OB on Newport Avenue, just west of Sunset Cliffs Boulevard. The trees down there are not a risk. At least not yet: "Mexican fan palms live for an average of 100 years, give or take a few years depending on the environment in which they’ve grown," according to GardenTabs.com
The letter to the Van de Walkers, which was addressed to “Property Owner.” informed them that an “independent survey recently conducted on behalf of the San Diego County Regional Airport Authority (the ‘Authority’) show [sic] a palm tree (see attached map) located in the public right-of-way adjacent to 4404 Newport Ave. that intrudes into the protected airspace that surrounds San Diego International Airport.”
To the untrained eye, the tops of trees, located hundreds of feet below the flying fortresses taking off (and, occasionally, landing) from the runway at what was once known as Lindbergh Field appear to be no danger to aircraft landing at the airport, which is nearly three miles to the east.
The city put a target on these particular examples of Bismarckia noblis, however, after the airport in 2020 conducted a survey, something done every 5-10 years.
“[O]bstructions constitute a violation of California Public Utilities Code Section 21659(a),” the letter from the city stated, with an FAQ provided by the airport stating, “Newly identified obstructions are approaching that safety margin, which necessitates mitigating them.”
For their part, the Van de Walkers hired attorney Marc Applbaum of the Midway Law Firm and, on Oct. 28, filed a “petition and complaint for writ of mandate, injunctive relief and damages.” A week earlier, Applebaum’s office had sent a cease-and-desist letter to San Diego mayor Todd Gloria, city forester Brian Widemer, the airport/Redman, the FAA, and San Diego city attorney Mara Eliot.
In the letter, Applbaum wrote that “… my clients will suffer various damages, including, but not limited to, diminution and loss of property value, reduced marketability, costs for engineers, appraisers and other experts to analyze damages to the Subject Property and the costs to mitigate damages.” The letter stated that the Van de Walkers’ home is “currently assessed at $1.765M by the San Diego County Assessor.”
The problem with the palm trees in OB, as the FAA sees it, is that sensitive aviation navigation instruments necessary for flying in fog or darkness would be affected by the trees. The Van de Walker team, though, filed a declaration of expert testimony from Michael Curran, who is also an attorney, a professional pilot and aviation/legal expert who has served in that capacity on multiple occasions, and who, in his declaration, stated that the palm trees “demonstrably are not a rational threat to aviation safety for aircraft on flight path/inclement weather, to San Diego airport.”
The city, however, differs with that assessment.
“At the request of the Federal Aviation Administration (FAA) and San Diego International Airport, the city of San Diego is planning to remove approximately 20 palm trees from two locations in Ocean Beach and Bankers Hill,” read a statement, in part, sent to NBC 7 Friday by Anthony Santacroce, a senior public information officer for the city of San Diego. “The trees are located on city property. According to the FAA, during inclement weather conditions these trees may interfere with the designated flight path and potentially cause arriving planes to be diverted away from the airport.”
Applbaum told NBC 7 on Friday, though, that the trees are not in the flight path.
“We do not think so, based on our analysis and the declarations from seasoned pilots familiar with SD airport flight paths,” Applbaum wrote.
Even if the trees were found to be in the flight path, Applebaum said, they would need to tower some 200 feet into the San Diego sky, a height that would certainly give the Point Loma neighborhood something else to pause for besides noise produced from jets frequently flying over.
So how far apart are the two sides in this litigation? Pretty far, it would seem. At this point, they can't even seem to agree about the palm trees.
“Upon information and belief, the palm trees to be extracted in Point Loma appear to be Fan Palms that are indigenous to the state of California that require protection by the California Coastal Commission,” argue the plaintiffs.
“We understand the community’s concern over losing these tall palm trees, which are not native to our region,” countered Anthony Santacroce, a senior public information officer for the city of San Diego, in a statement sent to NBC 7 on Friday.
On Nov. 1, the Van de Walkers got some injunctive relief when U.S. District Judge Cynthia Bashan granted an ex parte motion for a temporary restraining order.
“The Court RESTRAINS and ENJOINS Defendants BRIAN K. WIDENER and the SAN DIEGO COUNTY REGIONAL AIRPORT AUTHORITY as set forth in this Order. The Court ORDERS Plaintiffs to serve this Order on Defendants,” a court document stated.
But, the thing about a TRO is that the T stands for temporary, as the Van de Walkers learned on Oct. 9, when the federal judge in the case, Bashant, vacated the TRO, ruling that the Van De Walkers lacked standing in court since they were not, in fact the owner of the property on which the trees stand. Because they are growing in the green ribbon between the sidewalk and the street, the argument follows, the "owner" of the trees is, in fact, the city of San Diego.
Applbaum told NBC 7 that, as taxpayers, the Van de Walkers, are, in fact, “owners.”
“We are soon going back to court, either in federal court or state court, as our clients are property owners and taxpayers and have a vested interest in the survival of the majestic and iconic palm trees that are indigenous to the community,” Applbaum told NBC 7, adding later, “We believe all taxpayers have a property right to trees that are assets of the community.”
The city said on Friday that at this time, no crews have been scheduled to go in and take down the trees and, further, that it would be conducting additional inquiries prior to doing so anyway.
“There is currently no date for removal of the palms and we are engaging with the FAA and the San Diego Airport so that we may receive clear direction on why removal is necessary and the expected impacts to flights and public safety if the trees are not removed,” Santacroce said in the statement sent to NBC 7.
The Van de Walkers are getting some support from neighbors in their fight with city hall.
“I live in the neighborhood here, and I’m an engineer and I’m completely disbelieving that these beautiful palm trees are affecting air traffic,” said Richard Johnson on Saturday. “And I think it’s, ah, would be a shame, like, to have this, our neighborhood, have these trees taken from our neighborhood. I don’t get it. Doesn’t make sense to me.”
In the event the trees do come down, city officials said, they planned to work with homeowners to “plant new leaf trees that will add to our urban canopy. In addition to providing shade and lowering temperatures, native trees support the city’s climate action goals of removing air pollution, reducing stormwater runoff, and creating a more sustainable and resilient San Diego.”
Sure, but will the new trees vibe with OB? You’ll have to ask an Obecian.
