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Berliner Cohen Successfully Defends CEQA Lawsuit Relating to Maintenance of City Trees

October 20, 2017 |
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In a case alleging misconduct in approving a contract amendment for the maintenance of city trees, the City of Gilroy prevailed in arguing it acted appropriately in quickly allocating funds to its existing arborist service. The petitioner dismissed the action after the trial court held she was unlikely to prevail on the merits of her claims for violation of the Brown Act, the California Environmental Quality Act, and the prohibition on government self-dealing. Jolie Houston and Michael Branson represented the City of Gilroy in the action.

The dispute arose out of the City’s decision to amend its existing tree maintenance contract, necessitated by heavy damage to City trees as a result of the recent drought and subsequent winter storms. The City of Gilroy, through its Public Works Department, maintains an urban forest of approximately 18,000 trees, but also contracts with an independent arborist service to perform tree pruning and maintenance, including the removal of diseased or dead trees.

After the City approved the contract amendment, the petitioner challenged the City’s action on three grounds. First, she alleged the City violated the Brown Act because the City’s description of the contract approval in its publicly posted agenda did not specifically state that the amendment was based on a study of the health of specific trees and would allow for their removal. Second, the petitioner alleged the City violated CEQA because it failed review the environmental impacts of tree removal before approving the contract amendment. Finally, the petitioner alleged the City violated the prohibition against self-dealing in the making of public contracts under Government Code section 1090 because the City utilized the same contractor both for recommending which trees to remove and to undertake the actual removal.

The petitioner sought a preliminary injunction to require the City to seek pre-clearance from the petitioner before any City trees could be removed. In an order denying the motion for preliminary injunction, Judge Helen Williams of the Santa Clara County Superior Court concluded that the petitioner was unlikely to prevail on any of her causes of action.

First, the Court found that the City’s agenda item substantially complied with the requirements of the Brown Act.

Second, the Court soundly rejected petitioner’s claim that the City violated the prohibition against self-dealing in public contracts.  According to the petitioner, the arborist service was in a position to generate additional work for itself by recommending removal of dangerous trees, and thus a conflict existed. But the court rightly found that independent contractors only come within the scope of Government Code section 1090 when they have duties to engage in or advise on public contracting that they are expected to carry out on the government’s behalf.

Finally, the court found the petitioner was unlikely to prevail on the merits of her CEQA claim. The court held that while the original contract for tree maintenance may be a “project,” the contract amendment did not on its own amount to a “project” under CEQA. Further, because the petitioner did not oppose the original contract for tree maintenance, and in fact also did not appear before counsel to oppose the contract amendment, she had failed to exhaust her administrative remedies, a prerequisite to filing a CEQA action.

Jolie Houston and Michael Branson serve as Assistant City Attorney and Deputy City Attorney for the City of Gilroy, and regularly assist the City on a range of land use and municipal law issues. Berliner Cohen partner Andrew Faber serves as City Attorney.

 

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Andrew Faber practices in the areas of Land Use and Municipal Law. Andrew has over forty years of experience in representing private and public clients in a wide range of land use, environmental and public law matters, and in real estate, environmental and eminent domain litigation. If you have any questions, please contact Andrew Faber at andrew.faber@berliner.com or (408) 286-5800.

Jolie Houston practices in the areas of Land Use and Municipal Law. Jolie has over twenty years of experience representing private land use clients in a wide variety of land use and regulatory approvals. If you have any questions, please contact Jolie Houston at jolie.houston@berliner.com or (408) 286-5800.

Michael Branson’s practice at Berliner Cohen LLP is focused on Land Use and Municipal Law. He joined Berliner Cohen in 2015. If you have any questions, please contact Michael Branson at michael.branson@berliner.com or (408) 286-5800.

Berliner Cohen is one of the largest and oldest law firms in San Jose serving the business and regulatory needs of private business and public agencies.  Berliner Cohen also meets the growing demands of the Northern San Joaquin Valley with its expanding offices in Modesto and Merced.  For over 40 years, the Firm has developed the special expertise required by a diverse client base consisting of nationally recognized business interests and a number of Silicon Valley’s largest national and multinational corporations, new ventures, leading real estate developers and brokerages, cutting-edge technology companies, agribusiness, healthcare and other service providers, banking and financial institutions, employers, municipalities, public agencies, and individuals.

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