Judge Joel L. Lofton, Case Number: 23STCP03707, Date: 2023-10-31 Tentative Ruling

Judge: Joel L. Lofton, Case: 23STCP03707, Date: 2023-10-31 Tentative Ruling

Case Number: 23STCP03707 Hearing Date: October 31, 2023 Dept: X

Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE: October 31, 2023 TRIAL DATE: No date set.

CASE: GUARDIANS OF THE PINES, an unincorporated association, v. CITY OF BURBANK, a municipal corporation.

CASE NO.: 23STCP03707

EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER

MOVING PARTY: Petitioner Guardians of the Pines

RESPONDING PARTY: Respondent City of Burbank

SERVICE: Filed October 10, 2023

OPPOSITION: Filed October 26, 2023

REPLY: Filed October 30, 2023

RELIEF REQUESTED

Petitioner seeks a temporary restraining order preventing Respondents from taking any action on towards the Aleppo Pine Tree Reforestation Project.

BACKGROUND

This case arises out of Petitioner Guardian of the Pines’s (“Petitioner”) claim that Respondent City of Burbank (“Respondent”) violated the California Environmental Quality Act (“CEQA”) by approving the Aleppo Pine Tree Reforestation Project. Petitioner filed their petition on October 9, 2023.

TENTATIVE RULING

Petitioner’s ex parte application for a temporary restraining order is GRANTED in part and DENIED is part.

LEGAL STANDARD

Code of Civil Procedure section 526, subdivision (a), provides:

An injunction may be granted in the following cases: [¶] (1) When it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually. [¶] (2) When it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action. [¶] (3) When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual. [¶] (4) When pecuniary compensation would not afford adequate relief. [¶] (5) Where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief. [¶] (6) Where the restraint is necessary to prevent a multiplicity of judicial proceedings. [¶] (7) Where the obligation arises from a trust.

DISCUSSION

Petitioner moves for a preliminary injunction prohibiting Respondent from taking any actions towards implementing the Project, including removal of any Aleppo Pine Trees. Petitioner must show that (1) it is likely to succeed at trial on its cause of action for violation of CEQA and (2) the balance of harms favors issuance of a preliminary injunction.

A. Mootness

First, the City argues that Petitioner’s request to prevent the City from removing the three identified Aleppo Pines is moot. The City puts forward evidence that, following the Court’s denial of the TRO with respect to these three trees, the City completed the removal of the three identified Aleppo Pines. (Garcia Decl. ¶ 6.)

The Court agrees that Petitioner’s request is moot as to Petitioner’s request to halt the removal of the three identified Aleppo Pines. However, Petitioner’s request that the City be prevented from further implementing the Project and removing the remaining Aleppo Pines is not moot. The Court proceeds to analyze Petitioner and City’s arguments with respect to the remaining implementation of the Project.

B. Ripeness

Next, the City argues that the issue is not ripe because the City has not approved the removal of any other Aleppo Pines besides the three identified Aleppo Pines.

A controversy is “ripe” if there is an “actual controversy” in which definitive and conclusive relief can be granted, as opposed to an advisory opinion upon a particular or hypothetical state of facts. (Selby Realty Co. v. City of Buenaventura (1973) 10 Cal.3d 110, 118.) Ripeness “should not prevent courts from resolving concrete disputes if the consequence of a deferred decision will be lingering uncertainty in the law, especially when there is widespread public interest in the answer to a particular legal question.” (Pacific Legal Foundation v. California Coastal Commission (1982) 33 Cal.3d 158, 170.)

Here, City puts forward the declaration of Maria Garcia, the Park, Recreation, and Community Services Director for City. Ms. Garcia states that the City has not approved the removal of any Aleppo Pines other than the three identified Aleppo Pines that have already been removed. (Garcia Decl., ¶ 7.) Ms. Garcia states that the City is continuing to study the remaining 119 Aleppo Pines on a City-wide basis and is conducting public outreach to residents. (Garcia Decl., ¶ 7.) Ms. Garcia states that the City will not remove any Aleppo Pines until it finishes the level of environmental review required under CEQA. (Garcia Decl., ¶ 7.) Ms. Garcia states that the City has not approved an “Aleppo Pine Tree Reforestation Project.” (Garcia Decl., ¶ 7.)

The Petitioner, however, as stating in their moving papers are not so sure as to the City’s ‘actual commitment to the project’. Petitioner puts forward evidence of a September 18, 2023 Staff Report that states that the City’s experts “identified approximately 125 Aleppo Pine trees that have likely reached their mature life, and for which there may now be greater value in removing and replanting in a phased approach.” (Mackinnon Decl. Ex. B, p. 2.) The Report further states, “The Reforestation Strategy of the Aleppo Pine trees was presented to the City Council and approved during the Fiscal Year 2023-24 Budget Process.” (Mackinnon Decl. Ex. B, p. 2.) Further, the report states “In early July 2023, staff proceeded to begin executing the Strategy to remove and replace 121 trees without adequately informing and engaging the impacted residents.” (Mackinnon Decl. Ex. B, p. 2.) Additionally, the report states, “Staff has reconsidered the timeline of the removals and is planning to strategically remove and replace the trees in a multi-year phased approach.” (Mackinnon Decl. Ex. B, p. 2.)

Petitioner also puts forward the Arborist report in which the Arborist recommends that 119 specific Aleppo Pines be removed. The three identified Aleppo Pines are marked “Urgent” and recommended to be removed as soon as possible due to the imminent dangers they pose to the residential area. (Mackinnon Decl. Ex. B, Attachment 1, p. 2.) Petitioner also puts forward additional evidence that the City delivered notices to residents stating that “the City will be removing Aleppo Pine trees on your block. This work is anticipated to commence in August 2023 with an anticipated completion date of July 2024. (Supp. MacKinnon Decl., ¶ 3, Ex. E.) The supplemental evidence additionally shows that another notice was served on August 21, 2023, which states that “the City’s arboriculture experts determined that 121 Aleppo Pines have reached their mature life, and there is now greater value in replanting new trees as there are no alternative solutions.” (Supp. MacKinnon Decl., ¶ 4, Ex. F.)

The issue is ripe. There is an actual controversy as to whether the City’s approval of the “Reforestation Strategy of the Aleppo Pines” violated CEQA. Although the City argues that it has not approved removal of additional Aleppo Pines, its Staff Report admits that the City Council approved of the Reforestation Strategy which plans to remove and replant 119 Aleppo Pines in a multi-year phased approach. An “approval” occurs when an agency commits itself to a “definite course of action in regard to a project.” (Guidelines § 15352(a).) Courts look to the terms of the agreement and to the surrounding circumstances to determine whether the agency has committed itself to the project so as to effectively preclude any alternatives or mitigation measures that CEQA would otherwise require to be considered. (Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 139.)

Here, the evidence shows that the City made decisions to approve this Reforestation Strategy which plans to remove and replant the Aleppo Pines without undergoing any CEQA review. The plan specifies 119 specific Aleppo Pines to be removed over a multi-year period. Considering the specifics of the Reforestation Strategy, and the circumstances surrounding it, the evidence shows that the City has committed itself to this Reforestation Strategy so as to effectively preclude any alternatives. Significantly, the City has already begun implementing this plan, as evidenced by the City’s removal of the three identified Aleppo Pines. (Garcia Decl., ¶ 6.) The City’s argument that this issue is not ripe is contradicted by their actions that show that the City has been removing these Aleppo Pines and delivering notices pursuant to this Reforestation Strategy.

As there is a concrete dispute about whether the City’s approval of this Reforestation Strategy violated CEQA, the issue is ripe. Further, the declarations of the community members submitted by Petitioner show that there is a significant public interest in this controversy which further indicates that the Court should not defer decision on this matter. (See Pacific Legal, supra, 33 Cal.3d at 170.)

C. Likelihood of Succeeding on the Merits

In the sole cause of action in the Petition, Petitioner alleges that the City violated CEQA by failing to conduct a preliminary review prior to implementing the Project. (Pet., ¶¶ 29-33.) Petitioner additionally argues that the approval of this Reforestation strategy is not exempt from CEQA. (Pet., ¶ 34-51.)

CEQA Legal Standard

“CEQA is a comprehensive scheme designed to provide long-term protection to the environment.” (Mt. Lion Found. v. Fish & Game Com. (1997) 16 Cal.4th 105, 112.) “In enacting CEQA, the Legislature declared its intention that all public agencies responsible for regulating activities affecting the environment give prime consideration to preventing environmental damage when carrying out their duties.” (Ibid.) “CEQA is to be interpreted to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.” (Ibid.)

The CEQA Guidelines¿establish a three-tier process to ensure that public agencies inform their decisions with environmental considerations. (Muzzy Ranch Co. v. Solano County Airport Land Use Com’n (2007) 41 Cal.4th 372, 379-80.) The first tier is jurisdictional, requiring that an agency conduct a preliminary review to determine whether an activity is subject to CEQA. (CEQA Guidelines, § 15060; see¿Pub. Resources Code, § 21065.).” (Id. at 380.)

“The second tier concerns exemptions from CEQA review.” (Ibid.) “CEQA does not apply to projects that are statutorily or categorically exempt. (CEQA Guidelines, § 15061, subd. (b).)” (San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Distrct (2006) 139 Cal.App.4th 1356, 1380.)

“If a public agency properly finds that a project is exempt from CEQA, no¿further environmental review is necessary.” (Muzzy Ranch, supra, 41 Cal.4th at 380.) “The agency need only prepare and file a notice of exemption (see CEQA Guidelines,¿§§ 15061, subd. (d),¿15062, subd. (a)), citing the relevant statute or section of the CEQA Guidelines and including a brief statement of reasons to support the finding of an exemption (id.,¿§ 15062, subd. (a)(4)).” (Ibid.) “If a project does not fall within an exemption, the agency must ‘conduct an initial study to determine if the project may have a significant effect on the environment. (Id.,¿§ 15063, subd. (a).).” (Ibid.) “If there exists ‘no substantial evidence that the project or any of its aspects may cause a significant effect on the environment’ (id.,¿§ 15063, subd. (b)(2)), the agency must prepare a ‘negative declaration’ that briefly describes the reasons supporting its determination (see¿id.,¿§ 15070 et seq.).” (Id. at 380-81.)

“CEQA's third tier applies if the agency determines substantial evidence exists that an aspect of the project may cause a significant effect on the environment. In that event, the agency must ensure that a full environmental impact report is prepared on the proposed project. (CEQA Guidelines, § 15063, subd. (b)(1); see also¿Pub. Resources Code, §§ 21100,¿21151; CEQA Guidelines, § 15080 et seq.).” (Id. at 381.)

Application

Petitioner must show a likelihood of succeeding on the merits of its CEQA action such that a preliminary injunction would result if Petitioner is successful in this case. First, the Petitioner argues that there is no evidence that the City conducted a preliminary review to determine whether the Project was subject to CEQA before implementation of the Project.

CEQA Guidelines § 15060 states that “a lead agency must first determine whether an activity is subject to CEQA before conducting an initial study.” An activity is not subject to CEQA if the activity does not involve a discretionary agency action, the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment, or the activity is not a “project.” (Guidelines § 15060(c).) A “project” is the whole of an action which has a potential for resulting in either a direct or indirect physical change in the environment, and that is either an activity directly undertaken by an agency, assisted by an agency, or involves the issuance of an entitlement by an agency. (Guidelines § 15378.)

Petitioner argues that the Reforestation Strategy is a “project” subject to CEQA and thus should have undergone a preliminary review where the City determined if the Reforestation Strategy was subject to CEQA. Petitioner argues that the Project will result in some direct physical changes in the environment because over 100 mature trees will be removed as part of the Reforestation Strategy. Petitioner puts forward the declaration of arborists who state that the environmental impact of removing the trees will be great because the replacement tree species approved by the city are smaller and would never replace the amount of greenery, shade, and wildlife habitat provided by the Aleppo Pines. (Mellinger Decl., ¶ 12.) Further, the large diameter of the canopy of the Aleppo Pines will reduce the benefits of shade, stormwater interception, air quality improvements, energy conservation, and carbon sequestration. (Mann Decl., ¶ 11.) These experts opine that the time to restore the canopy will be at least 20 to 30 years. (Mann Decl., ¶ 11.)

The evidence shows that this Reforestation Strategy was approved by the City, is being undertaken by the City, and that there will be an environmental impact. The City does not put forward any evidence showing that this is not a “project” subject to CEQA. Nor does the City put forward any evidence that it conducted a preliminary review and determined that the “Reforestation Strategy” was not subject to CEQA.

Although the City puts forward evidence of its Notice of Exemption as to the three identified Aleppo Pines, (Garcia Decl., Ex. C), this does not show that the City complied with CEQA as to its approval of the whole Reforestation Strategy. There is no Notice of Exemption with respect to the approval of the whole plan to remove and replant the remaining Aleppo Pines.

A “project” under CEQA is the “whole of the action.” (Guidelines § 15378.) An agency must consider the environmental impacts of the whole action before it and not some of its constituent parts. (Guidelines § 15003(h).) “The term ‘project’ refers to the activity which is being approved and which may be subject to several discretionary approvals by governmental agencies. The term ‘project’ does not mean each separate governmental approval. [¶]… Where the lead agency could describe the project as either the adoption of a particular regulation … or as a development proposal which will be subject to several governmental approvals … the lead agency shall describe the project as the development proposal for the purpose of environmental analysis. (Citizens Association for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 165 [citing CEQA Guidelines § 15378(c)-(d)].)

Applying this law to the facts at hand, the City’s Restoration Strategy is the “project” subject to CEQA. Although the City may need to approve the removal of each individual Aleppo Pine, under CEQA, the “project” is the whole Restoration Strategy and the City is required to comply with CEQA as to the whole Restoration Strategy.

An agency is required to comply with CEQA and environmental review before approving a project. (See Laurel Heights Improvements Ass’n v. Regents of University of California (1988) 47 Cal.3d 376, 394.)

Because Petitioner offers evidence that the City did not conduct a preliminary review to determine whether the Reforestation Strategy is subject to CEQA before implementing the Reforestation Strategy, and the City does not offer evidence to prove that it did conduct this preliminary review, the Court finds that Petitioner has shown a likelihood of success with respect to its cause of action for violation of CEQA.

Categorical Exemptions

Petitioner additionally puts forward evidence that the Project is not exempt from CEQA pursuant to the “emergency exemption.” The City filed a Notice of Exemption on October 10, 2023 for removal of the three identified Aleppo Pines pursuant to the “emergency exemption” of CEQA.

The emergency exemption applies when there is “a sudden, unexpected occurrence, involving a clear and imminent danger, demanding immediate action to prevent or mitigate loss of, or damage to, life, health, property, or essential public services.” (Pub. Res. Code § 21060.3.) Emergencies are limited to “occurrences” not a condition. (Western Municipal Water District (1986) 187 Cal.App.3d 1104, 1111.) “The theory behind these exemptions is that if a project arises for which the lead agency simply cannot complete the requisite paperwork within the time constraints of CEQA, then pursing the project without complying with the EIR requirement is justifiable.” (Ibid.)

Here, Petitioner puts forward evidence that there is no sudden, unexpected occurrence that triggered the emergency exception because representatives have known about the condition of the trees since 2018. (MacKinnon Decl., ¶ 25.) Petitioner puts forward the declarations of the two arborists who both state that the scope of the City’s arborist’s review was skewed to favor removals and that there was little consideration of pruning or other mitigation options. (Mann Decl., ¶ 8.) These experts opined that failure was not “imminent” for any of these trees, including the three identified Aleppo Pines. (Mellinger ¶ 11.)

The City has not put forward evidence of any “sudden, unexpected occurrence” involving an imminent danger regarding the remaining Aleppo Pines. The City does not point to any imminent disaster that would have caused these trees to fall and create damage before the City would be able to conduct environmental review.

As such, Petitioner has also shown a likelihood of success with respect to the emergency exception asserted in the City’s Notice of Exemption filed on October 10, 2023. Because Petitioner has put forward evidence that shows a likelihood of success as to whether the Project qualified for an exemption, this shows that it was likely that the City was required to conduct an initial study to determine whether the Project might have a significant effect on the environment. (Guidelines § 15070(a).) The City has not done so. As such, the Court finds that Petitioner has shown a likelihood of success on the merits.

D. Balance of Harms

Petitioner puts forward evidence that Petitioner will suffer irreparable harm from the loss of shade, the exacerbation of the heat island effect, and from enjoyment of mature trees in the urban area.

The Court finds that there will be irreparable harm without this injunction. If the City is permitted to continue removing and replacing these trees, there will be no adequate relief provided to Petitioner. (See e.g., Hixon v. County of Los Angeles (1974) 38 Cal.App.3d 370, 378 [finding that a CEQA challenge is moot when the project ended by cutting down all the trees].) Further, the declarations of the experts show that the replacement trees will not provide the same benefits as the Aleppo Pines and the replacement trees will take decades to mature. (See Mellinger Decl., ¶ 12; Mann Decl., ¶ 11.) Further, the City has shown that, without an injunction, it can and will remove the Aleppo Pines, as evidenced by its removal of the three identified Aleppo Pines following the TRO hearing. (Garcia Decl., ¶ 6.)

On the other hand, the evidence shows that the City will not suffer harm before the case is decided on the merits. The evidence shows that only the three identified Aleppo Pines were labeled “Urgent” by the City’s arborist. (Garcia Decl., Ex. B.) These trees have already been removed, so the City cannot show that irreparable harm will occur if the City is not permitted to remove these trees. (Garcia Decl., ¶ 6.) The remaining trees are labeled with lower-risk scores and recommended to be removed either “before severe weather seasons” or within the next couple of years. (Garcia Decl., Ex. B.)

The City argues that the injunction would prevent the City from undertaking the level of environmental review required for such a project under CEQA, (Garcia Decl., ¶ 8), and that the City will not approve the removal of any Aleppo Pines without undergoing CEQA review. (Garcia Decl., ¶ 7.) These statements support the granting of the injunction of removing existing trees. As such, the City will not be harmed if the injunction is granted because its claimed actions will not change.

CONCLUSION

Petitioner’s motion for a preliminary injunction is GRANTED in part. The City is prevented from further removal of the subject Aleppo Pines pursuant to the City’s Reforestation Strategy until further order from this court.

The court additionally sets this matter for a trial setting conference on December12, 2023 at 1:30 pm.

Dated: October 31, 2023 ___________________________________

Joel L. Lofton

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit. alhdeptx@lacourt.org