A windstorm in January of 2021 failed to topple any of the remaining 33 pepper trees.

A lawsuit that would force the city to abide by its own tree protection policy was lost this month, which may make it even harder to stop the removal of other mature, greenhouse gas-trapping trees.

A case similar to one in Kensington will be heard next month over the historic, city-owned palm trees that line Newport Avenue in Ocean Beach, valued by locals for their iconic beauty.

The ruling, which has not yet been released, declared the tree policy an "unfunded mandate," lacking the weight of an ordinance, according to Margaret McCann who filed the lawsuit along with Celia Conover.

"I can find the money in every Councilmember’s budget priorities," McCann says.

The policy bars the hasty or needless removal of heritage trees, which qualify for nomination if they are 50 years or older or are linked to historic events or people, like the four city-owned peppers that prompted the lawsuit.

It doesn't restrict the removal of designated trees that threaten public safety, but only after "reasonable efforts have been made for additional care, corrective actions or maintenance to correct these problems."

The case was filed in 2020, after the city began removing what residents said were healthy peppers. As city forester Brian Widener saw it, the 110-year-old trees were so badly decayed they were a safety hazard. However, residents learned his assessment was based on photos or limited inspection of just a few trees.

They paid for a private assessment by retired UC arborist Sam Oludunfe who found most of the trees were sound and could have lived another 30-40 years.

Widener explained in his deposition that by looking at only a few trees, "we're able to extrapolate" and say the rest on the list are in that same category and in decline at pretty much the same rate.

"The reality is all of these trees are at their end of life."

A windstorm in January of 2021 that knocked down 200 city trees failed to topple any of the remaining 33, supposedly end-of-life, peppers. Still, Widener asserted that would not change his conclusion.

In Ocean Beach, neighbors were similarly appalled when, on short notice last October, city crews showed up with chainsaws, ultimately killing five of the century-old palms and planning to return for more; allegedly a request of the airport and FAA, which the lawsuit disputes.

Both cases accuse the city and Widener of pressing ahead with the removal of healthy trees and failing to give notice or seek community input, as called for by the 2005 tree policy.

Under the policy, all tree removal permit requests must be sent to community planning groups, council members and the currently inactive community forest advisory board.

While the policy supports planting and maintenance of public trees, its main purpose is to protect designated heritage trees.

Neighbors say their efforts to nominate all of Kensington's pepper trees for heritage status in 2018 went nowhere, and they contend that Widener never forwarded them to the forest advisory board.

That board is now effectively disbanded. The city wants to do away with three environmentally-related advisory boards, each with its own mission and experts, and replace them with one, McCann says. Which only makes it harder to provide city officials with important input about the urban forest.

As she sees it, the city is undermining its own Climate Action Plan with a flawed strategy for the urban forest - one that favors planting new trees over maintaining the mature trees that most effectively capture carbon.

While the city has set an ambitious tree planting agenda, it removes more trees than it plants.

Widener said about 2,000 trees were cut down last year and "a little less than 2,000 trees" were planted.

Yet, the Climate Action Plan goal is to achieve 15 percent canopy cover by the year 2020 and 35 percent canopy by 2035. The city forester said the city doesn't know if the 15 percent has been attained.

The last citywide estimate was in 2014, when it was 13 percent.

Getting there, McCann says, requires more than just planting new trees, as the plan now relies on. "The city depends too much on mitigating the removal of a mature tree by promising to plant a new one."

Widener said he looks at many factors to determine if a tree needs trimming or should be cut down, including its species and condition. The tree protection policy is just one of many policies and codes that guide the urban forestry program.

McCann says the ruling makes it easier to cut older trees, including those that were nominated but never designated. In fact, since September 2017, the city received at least 20 Conserve-a-Tree nominations. None have been approved.

"Essentially the city has suspended or terminated the Conserve-a-Tree program under the Public Tree Protection Policy."

Coupled with the inactive Community Forest Advisory Board, "there is no avenue for the public to seek protection of mature trees."

Which may get costly.

Tomorrow, June 30, when the city takes up an update of the Climate Action Plan, the council will approve a new urban tree canopy fee. City docs note that the cost to site, plant and maintain a street tree for three years is $725 per tree.

When that amount is applied to the council members' 2023 budget priorities to plant 2,000 trees in the fiscal year, the total is $1,450,000 - just to plant the trees.

"None of the council offices came close to that number in their requests," McCann says.