Is the New Airport Terminal the Reason the Point Loma Palm Trees Have to Go?

By Geoff Page

The Newport palms got their day – or rather their 10 minutes – in court Tuesday, November 9, as reported here in The OB Rag. The main reason why the effort failed was that the plaintiffs in the legal complaint, John and Tracy Van De Walker, did not own the trees. It was stated that these trees are on “city owned” property.”

Think about that for a minute. What the law is saying is the city, separate from its citizens, owns property that it can do with as it pleases and the citizens have no say. It sounds as if the judge was saying these trees are on someone else’s property as if the city was a private property owner.

It is called “public” property so why wouldn’t the public have the final say about what is done with it? Citizens own private property that they purchase with their own money. Because of that, they have the final say over what happens on their property.

Public property is paid for and owned by the public; the “city” is not a private property owner.  Why should the city, as a public entity, have more rights over public land than the citizens of that city?

The temporary restraining order was granted to stop the tree removals, temporarily. The next step was to present a case for keeping the restraining order in place long enough to put together a coherent case about the trees.  This came in the form of a “Petition and Complaint for Writ of Mandate, Injunctive Relief and Damages.”

The petition contained five “Causes of Action.” These are five arguments for the plaintiffs. Legal pleadings do not usually rely on only one argument and will contain every possible argument that can be made, no matter how weak, hoping that one or more will work. The five Causes of Action were:

1. Violation of Real Property Act – naming the FAA and the San Diego Airport Authority
2. Violation of Fifth Amendment Due Process and Civil Rights – naming all defendants
3. Inverse Condemnation Damages
4. Violations of the California Environmental Quality Act – naming all defendants
5. Violation of Constitution Prohibition of Private Gifts of Public Money against SDIA only

All of these were based on claimed damages to the Van De Walker’s property if the trees are removed. While the trees are not on the Van De Walker’s private property, their presence on Newport adds to the tangible value of their property.

The judge was not swayed by any of the five arguments and told the plaintiff’s attorney that it was the plaintiff’s burden to show the “likelihood of prevailing on the issues” and, so far, the plaintiffs had not. This meant the likelihood of prevailing on damages, not on actually saving the trees.  At this point, this writer began to wonder why this hearing was taking place at all.

The judge read the filing and came into court and clearly explained that she was not convinced. She did not require anything of the defendants who submitted nothing to the court. Since an attorney cannot submit new information in such a proceeding there was not much counsel for the plaintiffs could do. All he could do was argue the points already defeated.

Th problem seemed to be that it was necessary to show some kind of actual damages to an individual in order to file in the first place. This is where the legal stuff begins to feel infuriating. A lay person wonders why a case can’t be filed just to save a treasured public resource.

The “damages” may not be to an individual but surely are to the community at large. It is possible to estimate the value of these trees, this happens all the time for insurance claims. A mature tree of almost any kind is worth a lot of money; whatever that is, would be the damages to the public.

The likelihood of prevailing on an argument for the Van De Walker’s damages might be slim but it seems the likelihood of saving the trees is possible. But, in order to try that possibility, however, time is needed.

The San Diego International Airport’s original letter to the homeowners cited a California government code and an FAA code.

California Public Utilities Code Section 21659(a) was cited:

“21659.

(a)    No person shall construct or alter any structure or permit any natural growth to grow at a height which exceeds the obstruction standards set forth in the regulations of the Federal Aviation Administration relating to objects affecting navigable airspace contained in Title 14 of the Code of Federal Regulations, Part 77, Subpart C, unless the Federal Aviation Administration has determined that the construction, alteration, or growth does not constitute a hazard to air navigation or would not create an unsafe condition for air navigation.”

Note the wording “unless the Federal Aviation Administration has determined that the construction, alteration, or growth does not constitute a hazard.”  That indicates a possible out.

Federal Regulations, Part 77, Subpart C, § 77.15 “Scope” paragraph (b) states:

“(b) Objects that are considered obstructions under the standards described in this subpart are presumed hazards to air navigation unless further aeronautical study concludes that the object is not a hazard. Once further aeronautical study has been initiated, the FAA will use the standards in this subpart, along with FAA policy and guidance material, to determine if the object is a hazard to air navigation.”

Note the wording “unless further aeronautical study concludes that the object is not a hazard.” In order to conduct a further study, time is needed. This offers a glimmer of hope that the FAA might agree the trees could remain.

Remember, the SDIA’s letter stated the elevations of the trees were projected over five years with a growth rate of 2.5 feet per year.  That alone is absurd for mature palms 100 years old. If the FAA could be made aware that these specific trees will grow very little in the future, it might make the exception.  The parameters expressed in the SDIA letter are very general and not specific to any type of tree.

A further reading of Federal Regulations, Part 77, Subpart C begins to shine a light on the possible answer to the question why these trees are a problem all of a sudden. It may well be the expansion of Terminal One has caused this. The same “Scope” section cited above contains the following wording:

(a) This subpart describes standards used to determine obstructions to air navigation that may affect the safe and efficient use of navigable airspace  (Navigable airspace means airspace at and above the minimum flight altitudes prescribed by or under this chapter, including airspace needed for safe takeoff and landing) and the operation of planned or existing air navigation and communication facilities. …

(c) The FAA will apply these standards with reference to an existing airport facility, and airport proposals received by the FAA, …

(e) (2) A planned or proposed airport or an airport under construction of which the FAA has received actual notice.

The new Terminal One will have twice as many gates as the current one has now. The airport is doing everything it can to maximize traffic. This may require different landing approaches over areas that are not now heavily impacted. The loss of these trees may well be a hidden consequence of the new terminal and this consequence very probably did not make it into the Terminal One Environmental Impact Review.

With enough time, this could be properly researched and a case could be made. But, will there be time?

If these trees are destroyed, and it can be proven later this was not necessary, that could form the basis of a real lawsuit for damages and malfeasance on the part of city employees and their superiors, like the new mayor.