Posts from February, 2016
In Presidio Historical Association v. Presidio Trust, 2016 U.S. App. LEXIS 1287, the Ninth Circuit affirmed the district court’s grant of summary judgement in favor of the Presidio Trust and rejected challenges to a planned “lodge” adjacent to the Presidio’s Main Parade Ground.
The Presidio is managed by the Presidio Trust (“Trust”), a federal government corporation created by the Presidio Trust Act (“Act”) of 1996. The Trust’s actions are guided by the Act, the Golden Gate National Recreation Area Act, and the National Historic Preservation Act. These statutes charge the Trust with preserving the historic character of the Presidio while also becoming financially self-sustaining. To this end, the Trust created the Presidio Trust Management Plan in 2002. The 2011 formal plan update (“Update”) included plans to develop a 70,000 square-foot lodge, which was to be offset by the demolition of 94,000 square-feet of existing buildings.
Section 103(c) of the Act grants authority to the Trust to demolish structures that cannot be cost-effectively rehabilitated and provides for subsequent new construction that is “limited to replacement of existing structures of similar size in existing areas of development.” The Court’s decision centered on the interpretation of this provision. The Trust proffered that this provision unambiguously allowed “banking” of demolished building square-footage that could be used to offset new construction throughout the park. Conversely, the Historical Association asserted that the statute unambiguously requires a building-by-building approach—i.e., that a demolished building must be replaced by a building of roughly the same size in roughly the same place.
The Court applied Chevron deference to the Trust’s interpretation, holding the statutory provision’s plain text is ambiguous but that the Trust’s interpretation was not a permissible construction of the statute. As a backup argument on appeal, the Trust also advanced a narrower interpretation that would require new development to be in the same general area as any previously demolished buildings. The Court rejected this “banking lite” interpretation as a “litigation tactic” that was not entitled to Chevron deference and was unpersuasive under Skidmore deference.
As a result, the panel engaged in its own statutory interpretation and held “replacement of existing structures of similar size in existing areas of development” included the lodge building at issue, but refused to delineate the outer bounds of this statutory provision. It emphasized the importance of physical proximity of the new and old buildings, as well as the usefulness of the square-footage metric.
The Court also rejected a challenge arising under the National Historic Landmark Act’s section 110(f) mandate that the Trust “to the maximum extent possible undertake such planning and actions as may be necessary to minimize harm to the landmark.” The Court held that this provision was procedural only and did not impose any substantive restrictions on the Trust. Accordingly, the Trust’s extensive public outreach, meetings, consultations, and subsequent modifications to the project satisfied this mandate and served as evidence of a full and reasoned decision making process.
The weight of an agency interpretation will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all of those factors which give it power to persuade.
APPELLATE COURT ALLOWS ATTORNEY’S FEES CLAIM TO PROCEED AGAINST CORPORATE ALTER EGO 4 YEARS AFTER ORIGINAL JUDGMENTTuesday, February 2nd, 2016
In Highland Springs Conference & Training Center v. City of Banning, 2016 Cal. App. LEXIS 53, the Fourth Appellate District held that a motion to amend a judgement filed four years after the initial award was not automatically time-barred.
In 2008, plaintiffs Highland Springs Conference and Training Center and Banning Bench Community of Interest Association (“Plaintiffs”) prevailed in a CEQA lawsuit against the City of Banning and SCC/Black Bench, LLC and, along with two additional plaintiffs, were awarded over $1 million in attorney fees. Four years later, Plaintiffs had not been paid any part of the award and filed a motion to amend the judgement to include SCC Acquisitions, Inc. (“SCCA”) as the alter ego of SCC/Black Bench. Despite stating that it likely would have found that SCAA was the alter ego of SCC/Black Bench, the trial court denied the motion to amend because the four-year delay was unreasonable and showed a “lack of due diligence.”
The Court of Appeals reversed, holding that the equitable remedy of amending a judgment to add alter ego liability does not have a statute of limitations and SCC/Black Bench’s only recourse in this situation is asserting the equitable affirmative defense of laches. The Court held that a presumption of prejudice from SCCA’s bare assertion of “materially changed circumstances” since 2008 was insufficient to satisfy the burden of production required for the defense.
The Court then remanded to the trial court to determine whether Plaintiffs proved their alter ego claim against SCCA.
Alter ego liability is an equitable remedy that may be brought at any time after judgment through a motion to amend under Code of Civil Procedure section 187. To assert the equitable affirmative defense of laches, the defendant must show both an unreasonable delay by the plaintiff and prejudice to the defendant resulting from the delay (or acquiescence in the act about which the plaintiff complains).