Court of Appeals decision

PHA Comment on US Ninth Circuit Court of Appeals decision in Presidio case

(CASE # 13-16554)

 We are disappointed the Appeals Court found the Trust’s proposed Main Post hotel (fourteen buildings, twelve of them new) might be built. But the Court imposed important limits on construction in the Presidio, which we welcome and which will help protect the long-range future of the Presidio.

The primary issue was whether the Presidio Trust Act – which permits “replacement of existing structures of similar size in existing areas of development” – would allow 70,000 sq. ft. of new construction in the proposed hotel. The Court stated that a “major purpose” of the Trust set out in the Presidio Trust Act, was to “protect the Presidio from development and uses which would destroy the scenic beauty and historic and natural character of the area and cultural and recreational resources”. The Court rejected the Trust’s “banking scheme” for new construction. Under that scheme, the Trust had asserted that it could demolish buildings anywhere on the Presidio, then “bank” that demolished square footage for use anywhere else on the Presidio. Because the trial court had accepted that scheme, potentially opening the Main Post to unlimited development, plaintiffs were compelled to appeal that ruling. The Ninth Circuit overruled that part of the trial court decision, holding the Trust banking scheme to be “at odds with” Congress’ directives in the Presidio Trust Act, and therefore “impermissible”.

The Court nevertheless said the new hotel might go forward based on square footage available from structures already demolished or proposed for demolition in the Main Post in proximity to the proposed hotel site. But this conclusion was a conditional one. The Court stated it did not consider other construction projects already planned for the Main Post. It declined to evaluate the overall impacts of the Trust’s entire current plan.

While the Court focused only on the proposed hotel, its ruling makes clear that the Trust must now re-evaluate the overall impacts of proposed demolition and construction on the Main Post now and in the future. It must set priorities and save square-footage now for construction needed in both the short-term and long-term futures of the Main Post. It cannot build everything on its current wish list. At the same time, in all new construction, the Trust must clearly protect the “historic and natural character” and “cultural resources”of the Main Post.

In regard to our claim under the National Historic Preservation Act, the Court held that the Act requires a higher level of scrutiny for construction in National Historic Landmark Districts. But it disagreed with the Plaintiffs’ reading of the facts in this particular case.

We urge the Trust to reflect on the Court’s guidance and to move forward in a new direction. The Presidio, the public and the Trust itself will all benefit from Trust actions that protect the Presidio from “developments” that could diminish its “historic character” or “cultural resources”.


Background information, the final opinion, and court filings