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

by on November 11, 2021 · 13 comments

in Ocean Beach

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:


(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.




{ 13 comments… read them below or add one }

Paul Webb November 11, 2021 at 2:52 pm

Geoff, I understand the point you are trying to make with reference to the new terminal, but I’m afraid it just doesn’t hold up.

The imaginary surfaces that are the subject of this who thing are the precision approach surfaces for Runway 9. This is the east to west approach that is typically used only in bad weather requiring the full suite of navigation aids for a safe landing (localizer, glide slope, etc.). If you look at the history of operations, the total number of operations utilizing the precision approach for landings is quite small. The last time I looked it was something like about 5% of total operations.

Will the number of operations increase in the future? The answer is most likely if not certainly yes – with or without replacement of T1. This, of course, is dependent on things like not having another catastrophic surge of Covid -19, economic collapse like the great recession or other external factors that could cause a sharp diminution of air travel. But even if there were to be a doubling of traffic (quite unlikely given the single runway) there would still be a relatively small number of flights utilizing the precision approach.


Geoff Page November 12, 2021 at 10:30 am

As always, your input is appreciated, Paul, as you have the background. The only thing I can say is that, with increased traffic, doubling the usage is something. You and I both experience the west to east landings because we can almost reach up and touch the planes as they go over us. Do you know if the planes currently approach from west to east over Newport?


Paul Webb November 12, 2021 at 12:24 pm

Well, that depends. I’m not a pilot so take what I’m saying with a grain of salt. When they are flying the precision approach procedure, I’m pretty sure that they don’t get that far to the southwest – they pretty much go right over my house on Muir! But there are times when planes will land runway 9 (west to east) during clear weather. When Santa Ana winds blow hard enough, you will see that pattern. Also, during low traffic periods pilots coming down the coast will request a runway 9 landing to save the fuel that would be required to fly one of the standard approaches from the east. In either scenario, I don’t think they necessarily have to stay strictly on the precision approach (though I could well be wrong). It used to be quite common (and may still be) for a FedEx flight coming from the bay area to request runway 9 at 4 a.m. when there is virtually no other traffic. That can’t happen during most of the day because Tracon and the tower have planes lined up and sequenced to allow arrivals and departures to keep the airport functioning efficiently.

And I said IF traffic were to double – that is just not going to happen. There is pretty much a ceiling on the number of operations that can occur at a single runway airport. And, as you approach that maximum number of operations, the airport gets messier and messier from a traffic/congestion/delay standpoint.


Geoff Page November 13, 2021 at 1:07 pm

So, Paul, as usual, you add a lot, but I’m still left with the question. If they can’ increase traffic too much, why are they doubling the size of Terminal One?


retired botanist November 13, 2021 at 3:34 pm

Geoff and Paul, you are both yeomen for bothering to parse out all the double-talk, both legal and FAA. Thank you. I’m pretty appalled at the judge’s behavior and opinion- throwing out an opinion on what is basically an unreachable goal: “come up with ‘this’, but you have no time in which to do so” is so flippant. But then, the behavior I’m seeing from a number of judges on a national level, is really quite stunning. My respect for the process of law has deteriorated to nubbins. And it would have been MOST helpful if the frickin’ judge had bothered to opine on the true meaning and extent of “public property”- how hard is that?! :(


Angie November 11, 2021 at 4:09 pm

This argument may be grasping at straws but it’s still a great illustration of how many government officials forget that The People are their employers. They’re supposed to work for us, represent our wishes.

I especially like the point about City owned property. The City is not a private entity.

I live in El Cajon now, so I don’t have any say in what happens in San Diego.
I spent my childhood in an apartment on Muir, and my 19th year in an apartment on Bacon. OB is where I’d live if I could afford it. I may not have any say, but I care.

I appreciate all the work everyone is doing to save these trees! Thank you!!


retired botanist November 13, 2021 at 3:23 pm

Well said, Angie! The City seems to chronically forget that public space, like the sidewalks fronting all the restaurants, or the greenways supporting the palm trees, are actually owned by the PEOPLE. We are, indeed, the employers of all municipal staff!


Jake Ryan Raigoza November 11, 2021 at 10:14 pm

some of it comes down to co-operation and … etc.


Jake Ryan Raigoza November 11, 2021 at 10:15 pm

i think you were on a roll there with i think the city property etc,


Catherine Itule November 14, 2021 at 8:23 am

I definitely have no say here since I now live in Arizona, however I did live in Ocean Beach on Long Branch at Abbott for 13 years from 2002 to 2015. I absolutely love OB, however, I could not tolerate the noise of the airplanes any longer so I am glad we moved away. I simply cannot fathom a doubling of airport traffic! They should have moved that airport away from its current location a long time ago! But imagining that anyone would remove even one single palm tree from the beautiful enfilade of palm trees that line Newport Avenue, sends both a chill down my spine, and causes my entire face to flush with rage. I have faith in you OBtians though! FIGHT FIGHT FIGHT!!! Form a huge gang and use things like Twitter to communicate and mobilize when necessary. The way things are going in this country, so much lawlessness and injustice, you can bet your booty they are going to sneak in with their trucks and their booms and chainsaws when you least expect it! Be vigilant! Those trees are counting on you.


retired botanist November 14, 2021 at 4:00 pm

Well said Catherine! I lived on Voltaire for 4 years, and in San Diego for > 25 years, and my brother lived on Shelter Island for 30 yrs. I now live 1000s of miles away, and so have no specific dog in this fight other than my love for OB and my commitment to community preservation. The plane noise, the AQ pollution (but now, the actual emergency is palm height?! Really?) , and the scandalous rent increases (thx AirBnB) are what forced me out of OB. As an advocate for the OB Torrey pine trees back in 2016, I have seen all of this before. It is enraging, even from afar, that such a comparatively small community has to fight so damn hard to preserve every little tiny bit of signature they have, whether its Torrey pines or palm trees, public sidewalk space vs. restaurants, or parking, or fire pits, or unmitigated tree replacement, or the travesty of the Sunset Cliffs park at the moment, or the OB pier. I mean, really??? I just wish OB had a “bigger gun” of some sort, to say to the City: “you know what? That’s it!. Restaurants, retract your space, AirBnB- begone, City-don’t even THINK about bringing a chainsaw into our community. And City? Where’s our OB pier renovation $? Where’s our beach access stairs $?”
Next, Seaworld will petition to put some super ride into Dog Beach… its pretty heartbreaking…


Chris November 15, 2021 at 10:41 am

The whole Air BnB issue is interesting. I’ve stayed at Air BnBs numerous times but they were always owner occupied. They were never homes used for STVR purposes but rather the owner residents using a spare room to make a bit extra $. Usually situations where the kids moved out and therefore a spare room. One time we stayed in the East Village of NYC and the host was a renter of a two bedroom apartment and used the extra room. The big issue is not Air BnB itself but how it’s being used.


Chris November 15, 2021 at 10:54 am

Unfortunately because of how Air BnB IS being used along with so many other factors, the rising costs for housing in SD is sadly an unfixable problem. Designated “affordable housing” is nothing more than a band aid. A combination of greedy property management companies/owners and new residents (who don’t lose a stitch of sleep over the hardships of the less fortunate) who have the ability and willingness to pay exorbitant prices for such small units there simply is no light at the end of tunnel. If you don’t already own your home and are not pulling in at least 6 figures, displacement is inevitable. As much as I don’t want to leave San Diego or California, it’s not off the table. Shame on me for not thinking about this when I was younger.


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