Major Scherer Park Development: Court of Appeal Denies Stay ("halt") Pending Appeal of Lower Court Ruling OK'ing Expansion of NLB Police Facility Into Scherer Park
No court order now stopping City Hall from proceeding (incl. removing trees) but no immediate action underway as we post; both sides appear to be weighing options
(February 22, 2002, posted 2:00 p.m.) -- A CA Court of Appeal has denied a request by Stop Taking Our Parks (STOP) and CA Earth Corps for a stay (halt) pending appeal of a lower court ruling that approved City Hall's actions to expand NLB's police facility onto a 2.5 acre footprint in Scherer Park. [General area shown in photo, not necessarily exact trees to be removed.]
Today's Court of Appeal denial of the stay presumably allows the appeal to continue on the merits...but also means that as of today, there is no court order in effect preventing City Hall from proceeding with the project, including removing Scherer Park trees (subject to a federal migratory bird law, details below.)
However, no immediate action appeared to be underway to remove any trees and both sides appeared to be weighing their next moves as we post.
At the City Council's Feb. 19 meeting, City Manager Henry Taboada (responding to public comment testimony by STOP President Gigi Fast Elk Bannister) said City Hall would wait until the Court of Appeal ruled on the stay before deciding how to proceed with tree removal.
However, Mr. Taboada also said if the stay order were not granted [and it wasn't], "then we could legally proceed to begin construction prior to March 1."
With the Court of Appeal refusing to grant a stay, there is no court order preventing City Hall from proceeding, although tree removal is subject to a federal law on migratory birds requiring certification that there are no nesting birds in the area.
However, there appeared to be no immediate plans to proceed, with both sides still assessing their options after today's legal development.
Late last month, a lower court (Superior Court) ruling upheld City Hall's legal position across the board, sustaining city management's policies on Scherer Park approved by the City Council (Grabinski dissenting). These included rezoning park area to institutional to accommodate the expanded NLB police facility, subject to creating new park land at a separate NLB site.
[Last month's lower court ruling is posted in full at: Superior Ct. writ ruling on Scherer Park.]
As also previously reported by LBReport.com the U.S. Nat'l Park Service has requested a formal appraisal done to federal standards before it decides whether to grant its approval for the construction project; federal money has previously been used by the city at Scherer Park.
As first reported last week by LBReport.com, City Hall's project manager for the NLB police facility expansion at Scherer Park told the Court of Appeal in a written declaration that she had already obtained bids from contractors and believes removal of Scherer Park trees for the NLB police facility expansion "can be accomplished between February 21 (the day the trial court's temporary stay expires) and March 1st," the latter date recommended by an ornithologist retained by City Hall on the project.
In a separate sworn declaration, the ornithologist retained by City Hall, Kathleen M. Keane, told the Court of Appeal:
I have recommended that removal of the trees at Scherer Park, which will occur as part of construction of the Long Beach Police North Station, be conducted prior to March 1st so that the City of Long Beach may avoid violations of the MBTA [federal law], as many birds that nest in the City of Long Beach will begin to do so in March and April. After March 1st, the probability of finding active nests in the trees of Scherer Park increases, along with the probability of an MBTA violation should a tree with an active nest be removed or should the nest be otherwise damaged during project construction...
[I]t is my opinion that it is unlikely that the nesting season has actually begun as of this time. I would expect, given the circumstances, that the nesting would begin during early March. Nevertheless, I will be conducting an on-site survey to verify...whether active bird nests are present not more than two days prior to tree removal if it occurs prior to March 1st. However, based upon my opinion, if the tree removal can occur prior to March 1st, the potential for violations of the MBTA will be minimized.
We have posted extended excerpts of both declarations, below. The pertinent portion of Ms. Bodek's declaration follows:
The project will require the removal of up to 45 trees from the site, As a condition of Project approval, for each tree removed, the City must install in the Park one 24-inch box tree and pay into a City fund an amount for the acquisition of two 15-gallon trees, which will be planted in other City parks or public parkways. The City Municipal Code allows the Department of Parks and Recreation the discretion to meet this condition by planting fewer, but larger, trees. Landscape plans for the Project call for 123 trees (24-inch box and 36-inch box) to be planted within the boundaries of the Project, and 28 trees (36-inch box and 48-inch box), including several specimen trees, to be planted in the rest of the Park. Thus, 241 trees will be planted as a result of this Project (123 on site, an additional 28 in the Park, and 90 in other parks or public parkways.) Because the tree removal was not accomplished prior to February 1, 2002, certain biological resource constraints, namely, the restrictions contained in the Federal Migratory Bird Treaty Act ("MBTA") now arise. The MBTA restricts activities that would result in the removal or destruction of an active bird's nest (a nest with eggs or young being attended to by one or more adults) of a migratory bird. Such an activity would include the removal of a tree supporting an active nest during the bird breeding season, which runs from February 1st through July 31st. The City's consulting ornithologist has recommended removal of the trees prior to March 1st. As outlined in her declaration, as the project move [sic] further into the nesting season, the added mitigation will become more expensive and time consuming.
Based on the City's need to proceed with the Project and delays the City has already faced, I have obtained tree removal bids from landscaping contractors independent from the construction contract for Project. Based upon these estimates, I believe the tree removal can be accomplished between February 21st (the day the trial court's temporary stay expires) and March 1st, the date recommended by the Project ornithologist."
The pertinent portion a declaration by Ms. Kathleen M. Keane, retained by LB City Hall on the Scherer Park project, follows below:
I am an ornithologist, with over twenty years of experience in the field of ornithology. I received a Bachelor of Science degree in Ecology and Evolutionary Biology from Cornell University and a Master of Science degree in Terrestrial Biology from California State University at Long beach, with a special emphasis in ornithology.
I serve as the City's ornithologist on the Scherer Park project...
I have recommended that removal of the trees at Scherer Park, which will occur as part of construction of the Long Beach Police North Station, be conducted prior to March 1st so that the City of Long Beach may avoid violations of the MBTA, as many birds that nest in the City of Long Beach will begin to do so in March and April. After March 1st, the probability of finding active nests in the trees of Scherer Park increases, along with the probability of an MBTA violation should a tree with an active nest be removed or should the nest be otherwise damaged during project construction. The U.S. Fish and Wildlife Service office in Portland, Oregon can issue permits to authorize violations of the MBTA, but such a permit would include provisions for mitigation additional to that already proposed for the project, resulting in project delays and additional project expense.
...[I]t is my opinion that it is unlikely that the nesting season has actually begun as of this time. I would expect, given the circumstances, that the nesting would begin during early March. Nevertheless, I will be conducting an on-site survey to verify...whether active bird nests are present not more than two days prior to tree removal if it occurs prior to March 1st. However, based upon my opinion, if the tree removal can occur prior to March 1st, the potential for violations of the MBTA will be minimized.