Court Holds Amendments to Heritage Tree Ordinance Are not Exempt from CEQA
by Derek P. Cole on November 16, 2015
posted in CEQA, Recent Court Decisions,
The California Environmental Quality Act (“CEQA”) exempts governmental actions to protect natural resources and the environment from the requirement to prepare an environmental impact report. In a recent case, a court clarified what standard agencies must meet to justify the use of these exemptions, known by practitioners as the “Class 7” and “Class 8” exemptions.
In Save Our Big Trees v. City of Santa Cruz, the San Jose-based Sixth District Court of Appeal held that a city’s use of both exemptions could not be used to justify amendment of its heritage tree ordinance, which was intended to improve the ordinance. Despite this intent, the court found that city did not support its reliance on the exemptions with sufficient evidence.
The Ordinance Amendments
The City amended its heritage tree ordinance in a number of ways. Some of the amendments strengthened the ordinance; but as the court recognized—and the city conceded—a few of the amendments would result in more trees being cut down than allowed under the original ordinance. Among the changes that could result in tree loss were:
- A new requirement that the city council adopt a resolution before certain trees’ heritage statuses could be recognized;
- New grounds allowed for removal of heritage trees, including a tree’s financial burden on the owner and its effect on the owner’s health (such as allergies); and
- A new ground for removal of non-native heritage trees (e.g., eucalyptus trees) that outcompete native trees on a specific parcel.
The Failure of the City’s Exemption Findings
The key factor that supported the court’s holding was that these amendments would result in more trees being cut down. Even though other amendments also strengthened heritage-tree protections, the court observed the city had enacted an overall scheme that “protects fewer heritage trees more effectively.” The court noted that unlike in other CEQA cases, where the burden is on the party who sues, the city in this case had the burden to show that its actions would promote the protection of natural resources and the environment. The court found the city did not show with substantial evidence that the standards of the Class 7 or 8 Exemptions had been satisfied.
Lessons Learned
Save Our Big Trees should not be read to diminish the use of the Class 7 and 8 Exemptions. Essentially, the case came down to a lack of sufficient evidence on the city’s part to support the actions it took. What mattered to the court was that the amendments would arguably weaken the heritage tree ordinance in some ways despite strengthening it in others. Under these circumstances, the court believed the city could not rely on the exemptions without identifying evidence showing how natural resources and the environment would still be protected despite the loss of trees.
What agencies should take away from Save Our Big Trees is that the Class 7 and 8 exemptions will be difficult to justify if they amend ordinances in manners that may be viewed as being more permissive. In other words, even if agencies amend an ordinance in ways that are on balance more demanding, the fact that some portions of the amended ordinances could be viewed as less restrictive could prevent use of the exemptions.
After Save Our Big Trees, agencies should carefully scrutinize any changes they make to existing ordinances if they wish to rely on the Class 7 or 8 Exemptions. If changes could be perceived as relaxing any standards or requirements, agencies should consider other applicable exemptions (or the use of a negative declaration) or—at the very least—make sure they include compelling evidence in the record to show the changes would not result in less environmental or natural-resource protection.
