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HomeMy WebLinkAbout2024-71 - Denying the Applicant's Appeal of the Parks, Beaches and Recreation Commission's Decision to Approve the Removal of a Special City Landmark Blue Gum Eucalyptus Tree at the Balboa Branch Library and Fire Station No. 1RESOLUTION NO. 2024-71 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, DENYING THE APPLICANT'S APPEAL OF THE PARKS, BEACHES AND RECREATION COMMISSION'S DECISION TO APPROVE THE REMOVAL OF A SPECIAL CITY LANDMARK BLUE GUM EUCALYPTUS TREE AT THE BALBOA BRANCH LIBRARY AND FIRE STATION NO. 1 WHEREAS, the City of Newport Beach ("City") is governed, in part, by the Charter of the City of Newport Beach, Newport Beach Municipal Code, and Council Policies; WHEREAS, Section 200 of the City Charter vests the City Council with the authority to make and enforce all laws, rules, and regulations with respect to municipal affairs subject only to the restrictions and limitations contained in the Charter and the State Constitution, and the power to exercise, or act pursuant to any and all rights, powers and privileges, or procedures granted or prescribed by any law of the State of California; WHEREAS, City Council Policy G-1's (Retention, Removal, and Maintenance of City Trees) ("Council Policy G-1 ") provides standards for the retention, removal, maintenance, reforestation, tree trimming standards, and supplemental trimming of City standard trees, problem trees, and special trees; WHEREAS, Section I (Special City Trees) of Council Policy G-1 permits the removal of special trees if removal is related to the death, disease, interference with infrastructure, or the creation of a hazardous condition; WHEREAS, in the case of a landmark special tree, a Tree Inspection Report and Level 3 Testing: Advanced Techniques is required to determine whether specific mitigation measures are feasible or whether it is practical to retain the tree; WHEREAS, three Blue Gum Eucalyptus Trees ("Trees") at the Balboa Branch Library and Fire Station No. 1 located at 100 and 110 East Balboa Boulevard ("Property") were identified as Special City Landmark Trees based on the criteria in Council Policy G- 1; WHEREAS, the existing Balboa Branch Library and Fire Station No. 1 were originally constructed in 1929 and 1962 respectively, and identified for replacement under the City's Facility Financing Plan in 2025 ("Project"); Resolution No. 2024-71 Page 2 of 10 WHEREAS, the Trees are inspected annually by the City to monitor their condition; WHEREAS, sonic tomographic analysis was conducted on the Trees in December 2022 by the City's arborist, Dudek, Inc. ("Dudek") and, as a result, one tree was removed due to the level of decay detected in the tree trunk; WHEREAS, sonic tomographic analysis was again conducted on the two remaining Trees in August 2023 and, as a result, another tree was removed due to the level of decay detected in the tree trunk; WHEREAS, the remaining Landmark Tree ("Tree") had detectable tree trunk decay of 2% in December 2022, which rose to 7% in August 2023, and based upon the decay's advancement rate, the Tree is on a path to reach or surpass a 30% level of decay within five years, in which case there is a high risk of whole tree failure; WHEREAS, at its March 5, 2024, meeting, the PB&R Commission held a public meeting to consider the preferred concept design for the Project as well as City Staff's recommendation to remove the tree; WHEREAS, after considering the evidence, including tomographic analysis, the Project, as well as public comments opposing the Tree removal, the PB&R Commission recommended the preferred concept design for the Project and approved removal of the Tree, subject to the following conditions: a. the Tree would not be removed until September 2025, following nesting season; and b. as a further precaution, the City would confirm no active nests are in place prior to removal of the Tree; WHEREAS, the City Council approved the preferred concept design for the Project at its May 14, 2024, meeting which will negatively impact the condition of the tree and the rate of decay, should it be preserved; Resolution No. 2024-71 Page 3 of 10 WHEREAS, in accordance with Section IV.A (Removal of Special City Trees) of Council Policy G-1, the City posted noticed of PB&R Commission's decision and the City's intent to remove the Tree on May 17, 2024; WHEREAS, an appeal of the PB&R Commission's decision was filed by Christopher Pitet on June 14, 2024, within 30 calendar days of the City posting the notice; WHEREAS, the appeal alleges PB&R Commission's decision failed to comply with City Council Policy G-1, which mandates the retention of Special City Trees and the procedures for the removal of such trees; fails to comply with the California Environmental Quality Act ("CEQA"); PB&R Commission did not publicly disclosed reports concerning the Landmark Tree (e.g., the October 2023 Dudek report) detailing the current health and condition of the Landmark Tree; PB&R Commission has not obtained a current arborist report addressing the present condition of the Landmark Tree (i.e., after October 2023); PB&R Commission has not demonstrated that the Landmark Tree is sick, dying or otherwise presents safety concerns as required by City Council Policy G-1; PB&R Commission has not considered the decision's impact on the nearly two dozen great blue herons currently nesting in the Landmark Tree; and PB&R Commission's decision to remove the Landmark Tree is motivated solely by the City Council's desire to relocate the Balboa Branch Library and Fire Station, rather than any legitimate concerns with the Landmark Tree itself as required by City Council Policy G-1; and WHEREAS, the City Council held a public hearing on September 24, 2024, in the City Council Chambers located at 100 Civic Center Drive, Newport Beach. A notice of time, place and purpose of the hearing was given in accordance with California Government Code Section 54950 et seq. ("Ralph M. Brown Act"), Chapters 20.62 and 21.62 (Public Hearings) of the Newport Beach Municipal Code ("NBMC") and City Council Policy G-1. Evidence, both written and oral, was presented to and considered by, the City Council at this hearing. NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows: Section 1: The City Council hereby denies the appeal and upholds the decisions by City Staff and the Parks, Beaches, and Recreation Commission authorizing removal of the Tree in accordance with the Project. Resolution No. 2024-71 Page 4 of 10 Section 2: The City Council hereby finds that this decision is consistent with Council Policy G-1's (Retention, Removal, and Maintenance of City Trees) based on the foregoing. Council Policy G-1 provides standards for the retention, removal, maintenance, reforestation, tree trimming standards, and supplemental trimming of City trees. Council Policy G-1 sets forth three classifications of trees including standard trees, problem trees, and special trees with special trees further subclassified as landmark trees, dedicated trees, and/or neighborhood. Section I (Special City Trees) of Council Policy G-1 permits the removal of special trees if removal is related to the death, disease, interference with infrastructure, or the creation of a hazardous condition. Additionally, a special tree that is considered a landmark tree requires a Tree Inspection Report and Level 3 Testing: Advanced Techniques to determine whether specific mitigation measures are feasible or whether it is practical to retain the tree. A tree removal request must not adversely affect the overall inventory, diversity and age of the City's Urban Forest. A Tree Risk Assessment and sonic tomographic study of the Trees was conducted by Dudek in December 2022 which demonstrated poor health of the Trees. Specifically, the inspection found that due to the level of decay within the tree trunk of one of the trees, removal was necessary. A second Tree Risk Assessment and sonic tomography study of the Trees was conducted by Dudek in August 2023. Based on the assessments, two eucalyptus trees were removed due to their increased level of observed decay and risk of failure. The remaining Tree had detectable decay of 2% in December 2022, which rose to 7% in August 2023. Based on this rate of decay, the Tree is on a path to reach a 30% level of decay within five years in which case where there is a high risk of whole tree failure. Additionally, construction of the Project would further hasten the rate of decay and degrade the overall condition of the Tree through damage to the tree's extensive root system, should construction be undertaken with the Tree in place. Removal of the Tree would not impact the City's inventory of trees as it has annually increased over the past two decades. To demonstrate, whereas, in 2005, there were 3,889 public trees, in 2024, that count increased to 4,573 trees. This tree inventory does not account for the many more trees on private property. Resolution No. 2024-71 Page 5 of 10 Section 3: The City Council further finds that its decision is supported by the following responses to the appeal: Obiection 1: The decision fails to comply with City Council Policy G-1, which mandates the retention of Special City Trees and the procedures for the removal of such trees. Response 1: The PB&R Commission's decision complied with City Council Policy G-1. Section I (Special City Trees) of Council Policy G-1 permits the removal of special trees if removal is related to the death, disease, interference with infrastructure, or the creation of a hazardous condition. Additionally, a special tree that is considered a landmark tree requires a Tree Inspection Report ("TIR") and Level 3 Testing: Advanced Techniques to determine whether specific mitigation measures are feasible or whether it is practical to retain the tree. A tree removal request must not adversely affect the overall inventory, diversity and age of the City's Urban Forest. 1. City Staff prepared and presented a TIR dated February 6, 2024, for the Tree to the PB&R Commission at their March 5, 2024, meeting (pages 41-44 of the Agenda Packet). 2. Level 3 Risk Assessment was performed on the Tree on December 1, 2022, and again on August 29, 2023, and presented at the February 7, 2023, PB&R Commission meeting (Pages 41-68 of the Agenda Packet) and November 7, 2023, PB&R Commission meeting (Pages 24-49 of the Agenda Packet). 3. According to the TIR, the Tree had detectable decay of 2% in December 2022, which rose to 7% in August 2023. Based on this rate of decay this remaining tree is on a path to reach a 30% level of decay which results in a high risk of whole tree failure, within five years. 4. Additionally, impacts from construction of the Project would further hasten the rate of decay and degrade the overall condition of the Tree through damage to the Tree's extensive root system, should construction be undertaken with the Tree in place. 5. The Tree interferes with the Project in that construction will further degrade the Tree, even utilizing best management practices. Resolution No. 2024-71 Page 6 of 10 6. The removal of the Tree does not impact the City's inventory of trees. In 2005, there were 3,889 public trees and, in 2024, that count increased to 4,573 trees. The tree inventory does not consider the many more trees on private property. Objection 2: The decision fails to comply with the California Environmental Quality Act (CEQA). Response 2: The PB&R Commission's decision complies with CEQA because removal of the Tree is categorically exempt from CEQA pursuant to Sections 15301 (Class 1 — Existing Facilities), Section 15302 (Class 2 — Replacement of Reconstruction), and 15303 (Class 3 — New Construction or Conversion of Small Structures) of the CEQA Guidelines. The Class 1 exemption applies to additions to existing structures provided that the additional will not result in an increase of more than 10,000 square feet if the project is in an area where all public services and facilities are available to allow for maximum development permissible in the General Plan and the areas in which the project is located is not environmentally sensitive; Class 2 exempts replacement or reconstruction of existing structures where the new structure will be located on the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced; and Class 3 exempts the construction and location of limited numbers of new, small facilities or structures including but not limited to structures not exceeding 10,000 square feet in floor area in urbanized areas on sites zoned for such use. In this case, the Project, including removal of the Tree, consists of the demolition of the existing 4,140 square foot branch library, 360 square foot Balboa Historical Museum and 3,423-square-foot fire station and replacement with construction of a new Fire Station No. 1 and Balboa Branch Library of approximately 10,900 square feet. The Project as proposed results in a net public area increase of approximately 3,000 square feet, does not require any change in the zoning designation, and is in an urbanized area with adequate public services to serve the area. Based on the foregoing, the Project including removal of the tree is categorically exempt under the Class 1, Class 2 and Class 3 exemption. The exceptions to these categorical exemptions under Section 15300.2 are not applicable. The Project including removal of the Tree does not impact an environmental resource of hazardous or critical concern, does not result in cumulative impacts, does not have a significant effect on the environment due to unusual circumstances, does not Resolution No. 2024-71 Page 7 of 10 damage scenic resources within a state scenic highway, is not a hazardous waste site, and is not identified as a historical resource. As detailed above, the City's arborist consultant, determined that the Tree to be removed is diseased. Concerns were also raised regarding impacts that removal of the Tree would have on blue herons nesting. According to the evidence provided at the hearing, blue herons are opportunistic and would find another local habitat if the current site was unavailable. City staff observed and presented to the PB&R Commission that there are numerous nesting site opportunities around the harbor. Based on the public's concerns regarding nesting by blue herons, the PB&R Commission approved the removal of the diseased tree, subject to the delaying removal of the tree until September 2025, following nesting season and, as a further precaution, the conditioned removal of the tree on the City confirming no active nests are in place prior to removal. Therefore, the exception to this categorical exception does not apply. Objection 3: The PB&R Commission has not publicly disclosed reports concerning the Landmark Tree (e.g., the October 2023 Dudek Inc. (Dudek) report) detailing the current health and condition of the Landmark Tree. Response 3: Dudek's reports were made available to the public through PB&R Commission agenda materials. Specifically, Dudek's December 5, 2022, report was presented to the public at the February 7, 2023, PB&R Commission meeting (Pages 41-68 of the Agenda Packet) and the October 11, 2023, report was presented to the public at the November 7, 2023, PB&R Commission meeting (Pages 24-49 of the Agenda Packet). Objection 4: The PB&R Commission has not obtained a current arborist report addressing the present condition of the Landmark Tree (i.e., after October 2023). Response 4: Per Dudek's October 11, 2023, report, the defined timeframe for the risk assessment is 12 months, so per International Society of Arboriculture Tree Risk Assessment Qualification standards, the report is deemed current. Resolution No. 2024-71 Page 8 of 10 Objection 5: The PB&R Commission has not demonstrated that the Landmark Tree is sick, dying or otherwise presents safety concerns as required by City Council Policy G-1. Response 5: The PB&R Commission was presented findings on November 7, 2023, which demonstrated by Level 3 testing that the detectable internal decay increased from 2% to 7% over a 10-month period. This is an untreatable decay and based on rates experienced in the neighboring Blue Gum trees (previously removed), will likely continue to progress to a point of high risk within five years. Also, a significant amount of the proposed Project lies within the dripline of the tree and its root system would be negatively impacted by the necessary building demolition and grading using heavy equipment, if the City were to try to build with it in place. This disturbance will likely both increase the rate of the existing decay and the tree's risk level. Objection 6: The PB&R Commission has not considered the decision's impact on the nearly two dozen great blue herons currently nesting in the Landmark Tree. Response 6: The PB&R Commission considered nesting blue herons at its March 5, 2024, meeting, where City staff presented its consultation with a biologist from Dudek. Approximately ten mating pairs were observed, and the biologist stated to staff that blue herons are opportunistic and would find another local habitat if the current site was unavailable. City staff observed and presented to the PB&R Commission that there are numerous nesting site opportunities around the harbor. Objection 7: The PB&R Commission's decision to remove the Landmark Tree is motivated solely by the City Council's desire to relocate the Balboa Branch Library and Firehouse rather than any legitimate concerns with the Landmark Tree itself as required by City Council Policy G-1. Response 7: See, Response 1. Resolution No. 2024-71 Page 9 of 10 Section 4: The recitals provided in this resolution are true and correct and are incorporated into the operative part of this resolution. Section 5: If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. Section 6: The City Council finds the adoption of this resolution is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15301 (Class 1 — Existing Facilities), Section 15302 (Class 2 — Replacement of Reconstruction), and 15303 (Class 3 — New Construction or Conversion of Small Structures). The Class 1 exemption applies to additions to existing structures provided that the additional will not result in an increase of more than 10,000 square feet if the project is in an area where all public services and facilities are available to allow for maximum development permissible in the General Plan and the areas in which the project is located is not environmentally sensitive; Class 2 exempts replacement or reconstruction of existing structures where the new structure will be located on the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced, and Class 3 exempts the construction and location of limited numbers of new, small facilities or structures including but not limited to structures not exceeding 10,000 square feet in floor area in urbanized areas on sites zoned for such use. In this case, the project, including removal of the tree, consists of the demolition of the existing 4,140 square foot branch library, 360 square foot Balboa Historical Museum and 3,423-square-foot fire station and replacement with construction of a new Fire Station No. 1 and Balboa Branch Library of approximately 10,900 square feet. The project as proposed results in a net public area increase of approximately 3,000 square feet, does not require any change in the zoning designation, and is located in an urbanized area with adequate public services to serve the area. Based on the foregoing, the project including removal of the tree is categorically exempt under the Class 1, Class 2 and Class 3 exemption. The exceptions to these categorical exemptions under Section 15300.2 are not applicable. The Project including removal of the tree does not impact an environmental resource of hazardous or critical concern, does not result in cumulative impacts, does not have a significant effect on the environment due to unusual circumstances, does not damage scenic resources within a state scenic highway, is not a hazardous waste site, and is not identified as a historical resource. As detailed above, the City's arborist consultant, determined that the tree to be Resolution No. 2024-71 Page 10 of 10 removed is diseased. Concerns were also raised regarding impacts that removal of the tree would have on blue herons nesting. According to the evidence provided at the hearing, blue herons are opportunistic and would find another local habitat if the current site was unavailable. City staff observed and presented to the PB&R Commission that there are numerous nesting site opportunities around the harbor. Based on the public's concerns regarding nesting by blue herons, the PB&R Commission approved the removal of the diseased tree, subject to the delaying removal of the tree until September 2025, following nesting season and, as a further precaution, the conditioned removal of the tree on the City confirming no active nests are in place prior to removal. Therefore, the exception to this categorical exception does not apply. Section 7: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution. ADOPTED this 24t" day of September, 2024. Will O'Neill Mayor ATTEST: �4i\-Y Leilani I. Brown U City Clerk O RN% APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE C, -- Aaron C. Harp City Attorney STATE OF CALIFORNIA COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; the foregoing resolution, being Resolution No. 2024-71 was duly introduced before and adopted by the City Council of said City at a regular meeting of said Council held on the 24th day of September, 2024; and the same was so passed and adopted by the following vote, to wit: AYES: Mayor Will O'Neill, Mayor Pro Tern Joe Stapleton, Councilmember Noah Blom, Councilmember Robyn Grant, Councilmember Lauren Kleiman, Councilmember Erik Weigand NAYS: None ABSENT: Councilmember Brad Avery IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 25th day of September, 2024. Leilani I. Brown City Clerk