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July 16, 2024
VIA EMAIL
Honorable Mayor, Vice Mayor, and Councilmembers
City of Beverly Hills
455 N. Rexford Drive
Beverly Hills, CA 90210
Re: City Council Study Session Agenda Item A-1 (1001 N. Roxbury - Tree Removal Permit)
Dear Honorable Mayor, Vice Mayor, and Councilmembers:
We write on behalf of Eric and Nikki Baker, Beverly Hills residents who are building their family home at 1001 N. Roxbury Drive. The Council is set to consider whether to review the Planning Commission’s unanimous approval of a Tree Removal Permit (PL2300506) for 3 of the 30 heritage trees on their property.
As an initial matter, the Tree Removal Permit has been appealed, so there is nothing for the Council to “call up.” We respectfully request that the Council hear the appeal on September
10. In all events, there is no reason for the Council to review the Planning Commission’s decision.
There are 30 heritage trees on the property, and 27 of them would be retained under the approved Tree Removal Permit. The Bakers purchased this property because of its urban woodland feel. They worked with their architect to design their home around the site’s existing trees and large setbacks. This is evidenced by the fact that the home is 32 percent smaller than what the Bakers could build as a matter of right. In fact, an earlier design called for replacement of five heritage trees, but the Bakers adjusted their plans to reduce the home size further to retain two additional front-yard heritage trees.
The Bakers’ goal is to retain and enhance the urban woodland quality of their home and the City. The attached diagram shows the massive amount of tree plantings and limited removals.
As discussed in the Planning Commission staff report, certain non-native, non-climate adaptive trees on the property would be removed and replaced with native and climate-adaptive trees. In the front yard alone, there will be 37 trees (15 existing and 22 new). Together with the 7 street trees, there will be 44 total trees between the street and the front of the house. This is truly in keeping with the City’s garden feel.
July 16, 2024
The required findings for the Tree Removal Permit pursuant to BHMC §§ 10-3-2901 and 10-3-2902, as set forth in the staff report for the June 26, 2024, Planning Commission hearing, are readily made.
• No Impact to Neighboring Properties. There would be no impacts to neighboring properties. The property is flat, and the removed trees are at a substantial distance from all neighbors. One of the three trees proposed for removal is not visible from the street and is a non-native species with high water requirements that is not climate adapted to Southern California. The other two trees in the front yard are part of a large stand of like-sized trees and a passerby would be hard-pressed to differentiate the two from the surrounding trees being retained. Moreover, these two front yard trees are conifers (coast redwoods), which are disfavored by the Beverly Hills Fire Department due to their fire risk and are not recommended for planting in Beverly Hills’ Very High Fire Hazard Severity Zone since they readily spread fire to neighboring trees and buildings; the BHFD supports their removal. (Staff Report, p.
10.) The Planning Commission conditioned replacing all three trees with large mature trees that will reach 70 feet in height.
• No Adverse Impact to Garden Quality of City. Retaining the majority of the existing trees and installing additional plantings will enhance the City’s garden quality.
Planting 31 trees on the property, including 22 in the front yard setback, will enhance the City’s garden quality. Removing two disfavored trees from the front yard does not impact the City’s garden quality. A comparison of the property to its neighboring properties is telling. There will be 65 trees at the Bakers’ home – 37 in the front yard alone. In contrast, 1025 N. Roxbury appears to have no trees at all in the front yard, 1000 N. Roxbury appears to have one or two trees in the front yard, and 917 N.
Roxbury may have one.
The Planning Commission correctly issued the Tree Removal Permit based on the readily-made findings and the findings are well-supported by the evidence in the staff report.
We look forward to responding to the appeal and the Bakers look forward to continuing to plan and build their family home in Beverly Hills.
Very truly yours,
Benjamin J. Hanelin
of LATHAM & WATKINS LLP
Enclosure
cc: Mr. Michael Forbes, Community Development Director
Mr. Masa Alkire, City Planner
Mr. Philip Coronel, Associate Planner
Landscape Front
Elevation L- 3.02 18"=1'-0"
2370 b o w m o n t d r i v e
b e v e r l y h i l l s, c a 9 0 2 1 0
t: 3 1 0 . 2 7 3 . 5 6 6 0
f: 3 1 0 . 2 7 3 . 5 6 9 8
C h r i s t i n e L o n d o n L t d. 1001 N. Roxbury Drive 1001 N. Roxbury Drive
Beverly Hills, Ca 90210 date description sheet number drawn by scale project
address
sheet title north
20985393.2
Hanson Bridgett LLP
777 S. Figueroa Street, Suite 4200, Los Angeles, CA 90017 ELLIS F. RASKIN
PARTNER
DIRECT DIAL (415) 995-5835
DIRECT FAX (415) 995-3456
E-MAIL [email protected]
July 16, 2024
VIA EMAIL
City Council of Beverly Hills
455 N. Rexford Drive
Beverly Hills, CA 90210
(310) 285-1013
[email protected]
Re: Agenda Item A-1: Request by Councilmember Mirisch to Consider Reviewing the Planning Commission’s Decision to Approve a Tree Removal Permit at 1001 North Roxbury Drive (Permit No. PL2300506)
Dear Hon. Mayor Friedman and Hon. Councilmembers:
My office represents Maple Leaf Ventures, LLC in connection with the appeal of the Beverly Hills Planning Commission’s June 26, 2024 approval of a Tree Removal Permit (No.
PL2300506) for the property located at 1001 North Roxbury Drive (“Tree Removal Permit” or “Project”). We urge City Council to review this matter to ensure the strongest possible protections for the City’s urban forest and historic City trees. Unfortunately, the Planning Commission’s decision fails to comply with the strict requirements of the Protected Tree Ordinance and the California Environmental Quality Act.
Review is also necessary to ensure that any work at the 1001 North Roxbury Drive Property is properly conditioned to protect the trees. Yesterday, a crew of workers was observed at the 1001 North Roxbury Drive property cutting down trees. This crew did not install any protective fencing around the protected trees, and workers were observed driving and walking within the dripline of the protected trees. Some other tall trees came crashing down in close proximity to the protected trees shortly after they were cut. This was in violation of Municipal Code section 10-3-2905, which requires fencing and other measures to be placed around protected trees. We understand that the City has issued a stop work order and a notice of violation to the property owners. We therefore urge you to grant review to address these issues and to ensure that the City Council continues to protect the long-term health and vitality of its urban forest. If you have any questions, please do not hesitate to reach out to us.
I. SUMMARY OF GROUNDS FOR RECONSIDERATION OF THE PLANNING COMMISSION’S DECISION
There are two key reasons why the Planning Commission’s decision must be reconsidered.
First, the Planning Commission’s findings in support of approving the Tree Removal Permit are legally deficient and are not supported by substantial evidence. Under the City’s Municipal Code, the City may approve the removal of a protected tree only when the removal will not adversely affect neighboring properties or the garden quality of the City. Neither condition is met City Council of Beverly Hills
July 16, 2024
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in this case. Substantial evidence shows that the trees provide irreplaceable environmental benefits, and their removal will adversely affect neighboring properties and the surrounding community. Thus, the Planning Commission prejudicially abused its discretion when it found there would be no adverse effects associated with the removal of these trees.
Second, the Planning Commission’s decision to exempt the Project from environmental review violates CEQA.
1 Contrary to the Planning Commission’s findings, the Project does not qualify for a Class 4 exemption because it will remove healthy, mature, scenic trees. Further, substantial evidence in the record of proceedings demonstrates that the removal of these protected trees will have direct, indirect, and cumulatively significant impacts, thereby requiring environmental review under CEQA. The Project will remove three mature trees that provide important ecological services, including carbon sequestration, providing habitat for wildlife, and mitigating the City’s heat island effect. Further, the loss of mature canopy cover at the Project site will contribute significantly to the cumulative effect of canopy loss City-wide. As such, the Planning Commission abused its discretion when it granted the Tree Removal Permit without requiring environmental review.
For these reasons, the City council should deny approval of the Tree Removal Permit and require environmental review for the Project.
II. THE PLANNING COMMISSION’S FINDINGS IN SUPPORT OF APPROVING THE
TREE REMOVAL PERMIT ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE The proposed Project requests the removal of three heritage trees: two Coastal Redwoods (botanical name Sequoia sempervirens) with trunk circumferences of 94 inches and 107 inches, respectively, and one London Plane Sycamore (botanical name Platanus acerfolia) with a trunk circumference of 75 inches. The Planning Commission’s findings in support of the Removal Permit do not comply with the requirements of Municipal Code Section 10-3-2900 et seq., and the findings are not supported by substantial evidence in the record of proceedings.
Pursuant to Municipal Code section 10-3-2902, the Planning Commission may approve the removal of a protected tree provided that the Commission makes the following two findings:
(1) The removal of the protected tree will not adversely affect the neighboring properties or the general welfare or safety of the surrounding area; and (2) The removal of the protected tree will not adversely affect the garden quality of the city.
Neither condition is met here. First, the removal of the protected trees will adversely affect the neighboring properties and/or the general welfare or safety of the surrounding area. The Commission’s findings are premised on the fact that (1) the trees are located in the front setback area of the project site, (2) the trees would be replaced, and (3) the removal of these trees will promote fire safety. The setback issue is non-sequitur: the location of the trees relative to the Project site has no impact on the general welfare of the surrounding area. Further, the 1 The California Environmental Quality Act (Pub. Resources Code, §§ 21000 et seq.) is commonly known as “CEQA,” and the State CEQA Guidelines (Cal. Code of Regs, tit. 14, §§ 15000 et seq.) are commonly known as “the Guidelines”).
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findings pertaining to fire safety are also irrelevant. Removing canopy cover will reduce fuel regardless of the type of tree being removed. Most importantly, the loss of the trees will result in significant adverse environmental effects through the loss of canopy cover, habitat, and other ecological, aesthetic, and historic benefits. Substantial evidence shows that the trees provide irreplaceable environmental benefits, and their removal will adversely affect neighboring properties and the surrounding community. The replacement trees will take many years to mature and will not provide equivalent environmental value. Accordingly, the Planning Commission prejudicially abused its discretion when it found there would be no adverse effects associated with the removal of these trees.
Second, the removal of the protected trees will adversely affect the garden quality of the City.
As noted above, replacement trees take years to mature, and so the removal of older, established trees will have significant adverse environmental effects. Only a handful of equivalent-aged trees exist in the City, thus the loss of the replacement trees will have a decades-long lasting effect on the garden quality of the City.
For these reasons, the Planning Commission abused its discretion by granting the Tree Removal Permit and making findings that are not supported by substantial evidence in the record of proceedings.
III. THE PLANNING COMMISSION’S FINDING IN SUPPORT OF BYPASSING
ENVIRONMENTAL REVIEW VIOLATE THE CALIFORNIA ENVIRONMENTAL
QUALITY ACT
The Planning Commission’s finding that the Project qualifies for a Class 4 exemption (Minor Alterations to Land) violates CEQA and the State CEQA Guidelines, as explained below in further detail.
A. The Project does not qualify for a Class 4 Exemption because it involves the removal of healthy, mature, scenic trees.
The Project very clearly does not qualify for a Class 4 exemption under CEQA. Environmental review procedures under CEQA require public agencies to disclose and analyze adverse environmental effects of discretionary projects before approving those projects. (Pub.
Resources Code, § 21080(a).) As part of a preliminary analysis, a public agency must first determine whether the project is exempt from CEQA. (Banker’s Hill, Hillcrest, Park W. Cmty.
Pres. Grp. v. City of San Diego (2006) 139 Cal.App.4th 249, 258.) Here, the Planning Commission determined the Project qualified for the Class 4 exemption under CEQA. But this conclusion runs contrary to the plain language of the Class 4 exemption.
Class 4 exempts projects involving minor alterations to “land, water, and/or vegetation which do not involve the removal of healthy, mature, scenic trees except for forestry and agricultural purposes.” (Cal. Code of Regs, tit. 14, § 15304, emphasis added.) As explained above, the proposed Project involves the removal of three mature heritage trees with the purpose of “accommodat[ing] the new single-family residence and associated improvements.” (See Planning Commission Staff Report (June 26, 2024), p. 3-8.) Accordingly, the proposed Project does not qualify for the Class 4 exemption because it involves the removal of healthy, mature, scenic trees for a non-forestry/non-agricultural purpose.
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The Planning Commission completely ignored the plain language excepting the removal of healthy, mature, scenic trees from the Class 4 exemption, instead finding that because the exemption includes the replacement of existing conventional landscaping with water efficient landscaping, the Project was necessarily exempt. (See Planning Commission Staff Report (June 26, 2024), p. 3-9; Cal. Code of Regs, tit. 14, § 15304(b).) But again, the plain language of the Class 4 exemption clearly and unambiguously provides that the exemption does not apply in the case of removal of health, mature, scenic trees. Accordingly, the Planning Commission abused its discretion by concluding that the Project qualified for a Class 4 exemption.
B. The Project will have direct, indirect, and cumulatively significant impacts, and therefore requires environmental review under CEQA.
The proposed Project will have direct, indirect, and cumulatively significant impacts, thereby requiring environmental review pursuant to CEQA.
As noted above, CEQA requires public agencies to evaluate the environmental effects of discretionary projects that do not otherwise qualify for an exemption. The law is clear that public agencies “should not approve projects as proposed if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects of such projects.” (Pub. Resources Code, § 21002.) In enacting CEQA, the Legislature was clear that the act should be “interpreted in such a manner as to afford the fullest possible protection to the environment.” (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 390, internal quotes and citations omitted.) Fundamentally, the purpose of CEQA is to enable decisionmakers and members of the public to make meaningful and fully-informed decisions about new development and land use planning in their community. (See Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007)40 Cal.4th 412, 448-450.)
When reviewing whether a project will have adverse environmental impacts, public agencies must disclose, analyze and mitigate any environmental effects on “human beings, either directly or indirectly.” (Pub. Resources Code, § 21083, subd. (b)(3); Guidelines, § 15065, subd. (a)(4).) Indeed, CEQA mandates a finding of significant impact, and thus preparation of an EIR, when substantial evidence, in light of the whole record, shows that a project may have a significant cumulative effect, or has “effects [that] will cause substantial adverse effects on human beings, either directly or indirectly.” (Pub. Resources Code, § 21083, subd. (b)(2), (3); Guidelines, § 15065, subd. (a)(3), (4).)
CEQA and the Guidelines also require a CEQA analysis to disclose and evaluate a project’s cumulative impacts. CEQA mandates “a finding that a project may have ‘a significant effect on the environment’ “where the “possible effects of a project are individually limited but cumulatively considerable.” (Pub. Resources Code, § 21083, subd. (b), emphasis added; Guidelines, § 15065, subd. (a)(3).) “[C]umulatively considerable means that the incremental effects of an individual project are considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects.” (Pub. Resources Code, § 21083, subd. (b)(2).) Cumulative impacts may compound or increase other environmental impacts, and a CEQA analysis must inquire into and discuss the incremental impacts of a project when added to closely related past, present, and reasonably foreseeable probable future development projects taking place over a period of time.
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(Guidelines, § 15130, 15355, 15358; see North Coast Rivers Alliance v. Kawamura (2015) 243 Cal.App.4th 647, 682; Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 721.)
Substantial evidence in the record of proceedings demonstrates that the removal of the three trees will have direct, indirect, and cumulatively significant impacts. By requiring a Removal Permit for these trees, it is clear that the City believes heritage trees have environmental value.
Witnesses have observed that the trees have been used as wildlife habitat; that the trees provide unique aesthetic benefit; and that the trees mitigate the heat island effect. Coastal Redwoods in particular are widely considered to serve an important ecological purpose, providing habitat to a number of threatened and endangered species (e.g., the northern spotted owl and steelhead). Coastal Redwoods play an important role in carbon sequestration, storing the most aboveground carbon in heartwood, and also sequestering more carbon on an annual basis than any other tree species.2 Particularly in Beverly Hills, where traffic and urbanization generate significant carbon dioxide, carbon sequestration is a necessity in the wake of climate change. The International Union for Conservation of Nature (“IUCN”) listed the Coastal Redwood as endangered in 2013 after the number of individual trees declines by more than 50 percent over three generations due to logging.3 Thus, there is significant value in protecting this species.
Replacement of individual trees does not immediately mitigate the loss of habitat. Nor would replacement with less-mature trees mitigate the heat island effect as effectively. It is clear, then, that the removal of these trees would have direct and indirect impacts to the environment that cannot otherwise be mitigated.
Finally, the Project makes a cumulatively considerable contribution to the continued loss of mature canopy cover in the City. Just last year, the City of Beverly Hills announced plans to cut down nearly 100 trees to prevent damage to sidewalks and buildings.4 A group of advocates filed for and succeeded in obtaining a preliminary injunction in the Los Angeles Superior Court to stop the City from clear-cutting 36 Ficus trees on Robertson Boulevard without undergoing environmental review.5 But this was after the City had already removed nearly 50 Ficus trees.6 The loss of mature canopy cover at 1001 North Roxbury Drive would thus meaningfully contribute to the cumulative impact of tree loss City-wide.
In sum, the Planning Commission abused its discretion by failing to require environmental review for a Project that clearly will have direct, indirect, and cumulatively significant effects on the surrounding environment.
2 Sillett et al. Aboveground biomass dynamics and growth efficiency of Sequoia sempervirens forests (February 15, 2020) Forest Ecology Management, at p. 15. 3 Kelly, The Listing of Coastal Redwoods as Endangered Under the IUCN Red List: lessons for Conservation (2016) Proceedings of the Coast Redwood Symposium, at pp. 363, 365, available at https://www.fs.usda.gov/psw/publications/documents/psw_gtr258/psw_gtr258_361.pdf. 4 DuBose, Why Beverly Hills is Cutting Down Nearly 100 Trees (February 13, 2023) KTLA 5, available at https://ktla.com/news/local-news/why-beverly-hills-is-cutting-down-nearly-100-trees/. 5 Harter, Preliminary Injunction Granted in Robertson Tree Case (August 3, 2023) Beverly Hills Courier, available at https://beverlyhillscourier.com/2023/08/03/preliminary-injunction-granted-in-robertson-treecase/. 6 Waldinger, Robertson Trees Lawsuit Nears Settlement (June 6, 2024) Beverly Hills Courier, available at https://beverlyhillscourier.com/2024/06/06/robertson-trees-lawsuit-nears-settlement/.
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IV. CONCLUSION
For the foregoing reasons, we respectfully request that the City Council review this matter at a full public hearing. Should you have any questions, please do not hesitate to contact me at the telephone number or email listed above.
Sincerely,
Ellis F. Raskin
Partner