It’s time to move past the ficus fracas
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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