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It’s time to move past the ficus fracas

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Steve Bromberg

Not since the happening of a national disaster have I observed as

much television and print coverage as I have seen with the recent

removal of the ficus trees in downtown Balboa Peninsula. What we all

saw were the trees being cut down, a woman running through the

streets screaming that the city is nothing but “thieves in the night”

for sneaking in and cutting the trees down without warning and then,

ultimately, comparing the removal of the trees to the Holocaust.

We then heard someone making a comment on the news that this is

sleazy or slimy government in action while also implying that the

city sneaked in the middle of the night and took the trees down.

I gave a great deal of thought as to whether or not I should write

this letter, as no matter what is said, it will offend some and it

will clear the air for many. However, my sense is this is an

important letter to write, for no other reason other than having the

residents of this city understand the accurate facts as to what

occurred, and then you can draw your own opinions and conclusions,

based on fact, not on 20-second sound bites or conjecture.

After more than 20 years in the making, the City Council, some

time ago, approved a revitalization project for the downtown Balboa

Village, which is to be accomplished in three phases, for a cost in

excess of $8 million. Phase One, the work you may have seen over at

the Balboa Pier, has been completed. Phase Two involves Main Street

in Balboa, where the ficus trees were located.

The issue of removing the ficus trees in downtown Balboa has been

part of the revitalization project from the commencement of that

project. There have been no less than four public hearings held on

the issue. The removal of the ficus trees was supported by the vast

majority of the community in Balboa, including the Peninsula Point

Assn., a residents association, as well as the Balboa Merchant’s

Assn.

A great deal of study and research was conducted prior to a

decision being made that the ficus trees should be removed. Ficus

trees are beautiful. No one has questioned that at any time.

However, in downtown Balboa, although ficus trees are wonderful

trees, they are destructive and dangerous and they were put in the

wrong place. Forty years ago, when the trees were planted, the city

fathers had all of the great intentions. However, they simply did not

know the damage and havoc these trees would cause to property. Over

the years, these trees have undermined many of the businesses in

downtown Balboa to the extent that these folks have had to lay out

literally thousands of dollars of their own money for plumbing

problems as well as foundation damage, all of which were caused by

the ficus trees. This ultimately led to the residential and business

community requesting the city to remove these trees and replace them

with trees that would not be destructive.

As an aside, the 25 trees will be replaced with 32 trees that are

not destructive.

Now, fast forward to this past August. At yet another public

hearing on the issue, the City Council, based on the information we

had received, determined that the ficus trees would be removed.

Again, the community as a whole supported the removal. About four

people opposed the removal, stating that other measures could be

taken to save the trees. This included, by way of example, root

pruning as well as using root barriers. We also found out that yes,

that could work, however it would only be temporary, as if you

continue to prune the roots of ficus trees, the trees will lose their

integrity and would not have the ability to stand on their own.

As we were ready to start the tree removal process, the then-three

members of the Balboa Arbor Society, which was in formation at that

time, stated they still wanted an opportunity to preserve the trees.

At the council meeting, we were asked if the city would hold off on

removing the trees until the society could file a lawsuit against us

and attempt to secure an injunction. At that point in time, the city

was well within its rights as well as procedure to remove the trees,

however we agreed to let the society have its day in court. We never

invited the litigation. That decision had been made by the society

prior its appearance at the council meeting.

The society did file a lawsuit and, on Aug. 26, the court granted

a temporary injunction against the city preventing the removal of the

trees. The court’s ruling was not based on the merits of the case The

judge indicated that he could not grasp the content of the issue, and

to that end, set a hearing for a permanent injunction for Sept. 16,

and ordered we maintain the status quo until that time. We did that.

That hearing occurred, and on that day, the judge denied the

society’s request for an injunction and said the city’s procedure was

proper. The judge ruled that the society waited too long to proceed

and that the statute of limitations to contest the issue had run out.

Now that the process had been completed and the court ruled in

favor of the city’s position, the city moved forward and took the

trees down the following Wednesday. No skulking around in the middle

of the night, no covert action, but rather starting what had been

scheduled for weeks prior. What was the urgency? Well, this project

had been put on hold pending the lawsuit, and what most folks do not

know is that the city could not move forward with Phase Two of the

project without first removing the trees. That was a critical part of

the project, as if you had an opportunity to ever see the roots of

those trees and as well as the damage they were causing , you would

have a better understanding of what was going on.

The Phase Two work could not take place during mid- to late

December, as to do so would only interfere with holiday traffic, the

business sales in Balboa and, most significantly, the Balboa Boat

Parade festivities. Additionally, what was pretty much unknown to the

general public is that the Coastal Commission would not permit the

city to do much of the Phase Two or even Phase Three work in portions

of the summer, as to do so would prevent appropriate beach access to

the public. If the trees were not removed, the revitalization project

would have been put back about one year.

Now we fast forward again to right now. The society had commenced

the process of going to court and was unsuccessful, and the way our

judicial system is structured, it can be very effective if it is

given a chance, and everyone, no matter who they are, can have their

day in court. The process does work, at least most of the time. In

this instance, the society was unsuccessful. However, rather than

accept the process, the society determined that the process would

only be appropriate if it worked in its favor.

When the society lost its case in court, it filed for a Writ of

Mandate with the Court of Appeal that Wednesday morning, which was

the same day the trees were removed, without notifying the city.

The society felt the city should once again hold off on the

project, and that the trees should not be removed until the appellate

process has been exhausted. That is just not a reasonable position.

The appellate process can easily take years, and considering the

comments of the judge at the hearing for the injunction on Sept. 16,

the likelihood of success on the part of society did seem “remote and

nil.”

Notwithstanding that issue, the day before the trees were removed,

the society contacted City Manager Homer Bludau and stated that an

appeal would be filed and asked that once again, we delay the

project. Our city manager clearly told the society that the city

would not make such a representation as the city has a responsibility

to everyone, not simply the very few who were trying to prevent the

tree removal and, most significantly, that the issue was decided in

court.

We have a process in this country. Of course we do not always

agree with the results, especially if it does not favor our

respective position. That’s just human nature. That’s fine. However,

we still have a responsibility to respect that process . The city of

Newport Beach made every reasonable effort to resolve this issue,

however that was not successful. It takes two to agree and,

unfortunately, that didn’t happen. The result was that we went

through the process that was instituted by the society. We did so by

the rules and it was done openly.

Where are we today? Well, the Court of Appeals will decide if the

two remaining trees will stand or be removed.

Also, after the tree removal, one of the businesses in downtown

Balboa was decorated with graffiti by vandals, referencing the trees.

It’s time to move on.

* STEVE BROMBERG is a Newport Beach City Council member whose

term ends in 2004.

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