Tuesday, September 26, 2023
Courthouse News Service
Tuesday, September 26, 2023 | Back issues
Courthouse News Service Courthouse News Service

9th Circ. OKs New Build in Historic Presidio

SAN FRANCISCO (CN) - A trust may proceed with a demolition and construction project in the Main Post area of San Francisco's historic Presidio, the Ninth Circuit ruled Wednesday.

The Presidio, located just south of the Golden Gate Bridge, is a former military base that is now a national park and national historic landmark.

"Like the city in which it sits, the Presidio is caught in the middle of competing forces: on the one hand, a strong commitment to preservation, and on the other, the inexorable tide of change, development and economic pressures," Circuit Judge Margaret McKeown wrote in the Circuit's 34-page opinion.

The case here concerns a planned construction project of the Presidio Trust, who under the Presidio Trust Act "must fulfill the dual statutory purposes of preserving the historic and natural character of the Presidio and making the Presidio financially self-sustaining."

Presidio Trust's project plan provides for extensive demolition and new construction on the Presidio's Main Post, including a new lodge, an expansion of the Presidio Theatre, an addition the Presidio Chapel and an archaeology lab.

Central to the appeal, according to the opinion, is whether the construction of the lodge - which would encompass 70,000 square feet - offset by demolition of other buildings in the Main Post constitutes "replacement of existing structures of similar size in existing areas of development" under the trust act.

McKeown said that the lodge proposal "ultimately reflected a scaled-back approach that the trust adopted after consultation with interested parties," such as the National Park Service and the California State Historic Preservation Officer.

Still, the Presidio Historical Association and the Sierra Club sued the trust, claiming the proposal violated the trust act and the National Historic Preservation Act.

A federal judge found for the trust, concluding that the lodge proposal was "well within any reasonable interpretation" of the section of the Presidio Trust Act at issue, which requires the trust to "develop a comprehensive program for management of those lands and facilities within the Presidio which are transferred to the administrative jurisdiction of the trust."

Such a program, the statute mandates, must consist of "demolition of structures which in the opinion of the trust cannot be cost-effectively rehabilitated and which are identified in the management plan for demolition" and "new construction limited to replacement of existing structures of similar size in existing areas of development."

According to the opinion, the trust interpreted the statute's language to permit new construction in any existing area of development so long as the new construction is offset by demolition in any existing area of development throughout the park - what the opinion calls the "banking interpretation."

During the course of the litigation, the trust also advanced a narrower interpretation of the statute that would permit new construction so long as it is offset by demolition in the same existing area of development, the opinion said.

The Presidio Historical Association, on the other hand, took the position that the statute limits new construction to replacement of demolished structures with "buildings of roughly the same size in roughly the same place."

Affirming the district court's ruling, the Circuit rejected the trust's broad theory but agreed that the statute supported "a variant" of its narrower interpretation.

"The buildings scheduled for demolition within the same Main Post planning district (94,000 square feet) offset the lodge's 70,000 square feet of new construction within close proximity to the demolished structures," McKeown said.

"We therefore hold that the lodge proposal qualifies as a 'replacement of existing structures of similar size in an existing area of development.'"

The Circuit did not address other components of the trust's construction plans, since the lodge construction was the only component before the panel on appeal.

McKeown also said that the trust met the heightened standard of consideration of alternatives under the National Historic Preservation Act during the planning process.

Deborah Sivas, who represented the Presidio Historical Association, said in an email that "while we are disappointed in the outcome, we believe the court was correct to reject the various 'banking' theories offered by the trust."

She added, "The trial court's broad embrace of those theories would have established a very troubling precedent for future development on the Presidio, and that concern was a key factor in our clients' decision to appeal the lower court's ruling."

The trust's lead counsel did not immediately respond to an email requesting comment on Wednesday morning.

Categories / Uncategorized

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.