In Save Our Big Trees v. City of Santa Cruz, 2015 Cal. App. LEXIS 942, the Sixth Appellate District held that the City of Santa Cruz (City) failed to carry its burden of demonstrating with substantial evidence that the amendment of its Heritage Tree Ordinance and Heritage Tree Removal Resolution (Project) were categorically exempt from the California Environmental Quality Act (CEQA).
To avoid having to undertake costly environmental review, City staff recommended revising the Heritage Tree Ordinance to only allow for the removal of: (1) non-native invasive heritage trees growing outside biotic resource areas; and (2) non-native invasive heritage trees growing inside biotic resource areas, following confirmation from a qualified biologist that removal would not adversely impact or degrade the existing habitat. Staff also proposed amending the Heritage Tree Removal Resolution to permit the removal of a heritage tree that “has created or is likely to create an unreasonable and substantial hardship for a private property owner such as, excessive degradation or damage to real property, an unreasonable financial or economic burden, or an adverse effect on personal health such as allergies or physical mobility.”
Staff concluded that, as modified, the Project was exempt from CEQA under the categorical exemptions set forth in sections 15307 (Class 7) and 15308 (Class 8) of the CEQA Guidelines. These exemptions apply to actions taken to assure the maintenance, restoration, or enhancement of a natural resource or the environment. In support of that conclusion, Staff noted that while the proposed revisions to the Heritage Tree Removal Resolution “may allow for the removal of additional non-native trees,” they “would not necessarily have the potential for causing a cumulative impact or significant effect on the environment” because “[t]he City is not requiring the removal of non-native invasive tree species[,] . . . [and] removing large trees is frequently financially limiting [such that] it is unlikely that the probability of large numbers of trees being removed would increase.”
In January 2013, the City’s Parks and Recreation Commission voted to recommend the proposed Heritage Tree Ordinance amendments and the Heritage Tree Removal Resolution amendments to the City Council. The Project was considered by the City Council in October 2013. One councilmember expressed concerns that the amendments would allow people to cut down more trees, rendering the Project subject to CEQA review. Regardless, the City Council approved the amendments and adopted and approved the staff’s determination that the Project was exempt from CEQA.
On review, the Court of Appeal indicated that the case centers on the first tier of CEQA review, which requires an agency to conduct a preliminary review to determine whether CEQA applies to a proposed project. Relying on Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, the Court noted that the standard for determining whether a project falls within a Class 7 and/or Class 8 categorical exemption is not whether the project will have a significant effect on the environment, but whether substantial evidence supports the determination that the project will assure the maintenance, restoration, or enhancement of the environment. The Court also noted that the lead agency bears the burden of demonstrating substantial evidence.
The Court found that the Project removes, rather than secures protections for heritage trees and that the City offered no evidence that the required replacement of trees would contribute beneficially to the urban environment in the same way as the removed heritage trees. The Court held that the City failed to carry its burden of demonstrating with substantial evidence that the Project will assure the maintenance, restoration, or enhancement of the environment and that, as such, substantial evidence does not support the application of the Class 7 or Class 8 exemptions.
Key Point:
Lead agencies have the burden of providing substantial evidence to demonstrate that their projects fall within a categorical exemption to CEQA. This case stresses the need for lead agencies to prepare robust findings with specific facts serving as the legal basis in support of their determination that a categorical exemption applies.