PETITION FOR WRIT OF SUPERSEDEAS AND TEMPORARY STAY OF DEMOLITION

Transcription

1 No. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT, DIVISION 1 SAVE OUR HERITAGE ORGANISATION; Civil Number v. Plaintiff and Appellant, Emergency Stay Requested October 12, 2010 SAN DIEGO UNIFIED PORT DISTRICT, and BOARD OF PORT COMMISSIONERS of the SAN DIEGO San Diego County Superior Court UNIFIED PORT DISTRICT; Case Number Defendants and Respondents; CU-TT-CTL SAN DIEGO COUNTY REGIONAL AIRPORT AUTHORITY; Real Parties in Interest and Respondents. On appeal from the Superior Court of San Diego County Dept. 71, Honorable Ronald S. Prager, PETITION FOR WRIT OF SUPERSEDEAS AND TEMPORARY STAY OF DEMOLITION The McDonald Law Firm, LC Brandt-Hawley Law Group Steven P. McDonald/SBN Susan Brandt-Hawley/ SBN Fay, Suite 350 P.O. Box 1659 La Jolla, CA Glen Ellen, CA fax fax Attorneys for Plaintiff and Appellant

2 To the Honorable Justices of the California Court of Appeal, the Fourth Appellate District, Division 1: Save Our Heritage Organisation (SOHO) petitions for an emergency stay and a writ of supersedeas. The Port District proposes to destroy the entire Ryan Aeronautical Company Historic District at Lindbergh Field, including seventeen large buildings built between 1939 and SOHO asks to stay the demolition of two of the smaller buildings. There is no justification for the imminent destruction of Buildings 180 and 181. Supersedeas is warranted under People ex rel. San Francisco Bay v. Town of Emeryville (1968) 69 Cal.2d 533 to protect the jurisdiction of this Court, since the fruits of a reversal would be irrevocably lost unless the status quo is maintained. (Id. at 537.) During the Superior Court proceedings, the Port agreed not to begin demolition of Buildings 120, 180, or 181 pending judgment. Following the recent denial of its petition brought under the California Environmental Quality Act (CEQA), SOHO requested a Superior Court stay to allow time to seek this Court s writ of supersedeas only as to Buildings 180 and 181 (Building 120 has since been demolished). At a hearing on the stay request and form of judgment last week, Port counsel stated that demolition on the airport site would continue for a number of months, and that the razing of Building 180 is not expected to begin before October 18 th, with Building 181 to follow. The Superior Court thereafter declined to issue a stay. 2

3 However, SOHO was informed by the Port s counsel via on Sunday, October 10 th, that demolition will be proceeding ahead of schedule as early as October 13 th for Building 180 and October 20 th for On Monday, October 11 th, a federal holiday, Port counsel sent another indicating that in fact demolition of both buildings will begin on Wednesday October 13 th. Although there are many other airport buildings upon which demolition work may proceed while this Court s writ is sought, requests to delay the demolition of Buildings 180 and 181 for even a few days to allow this Court s review have been rebuffed by the Port. The demolition of a significant historic resource is always a means to an end rather than an end unto itself. Razing an aging structure is the first step toward new construction. Here, vintage Ryan aeronautical structures warrant abatement of lead paint and other contaminants common to their era. This is not unusual for historic buildings, which thereafter often provide great opportunity for adaptive reuse. The abatement of Buildings 180 and 181 is now complete, and they can safely remain on a small footprint at the edge of the Ryan site to await redevelopment pursuant to the Airport Master Plan. They have been there for 70 years and can remain another year while this appeal is considered and first, for a few weeks pending supersedeas. The Port instead prefers to demolish the Ryan historic district, along 1 Facts are supported by citation to the record and declaration, post. 3

4 with 37 adjacent non-historic buildings, because it has a long-term lease with the San Diego Airport and wants to clean up the site and give it to the Airport as a ready-to-use property. (Administrative Record (AR) 3:1211.) The Port s chosen path razing and abating its profoundly historic site to create a blank slate for new construction may sound appealingly simple. But the loss of the historic district will have conceded significant impacts and is not environmentally justifiable. CEQA requires that the feasibility of adaptive reuse of the unique Ryan Aeronautics buildings, which have tremendous stories to tell and evoke a dynamic time in San Diego s aeronautic history, be fairly evaluated. The buildings also present great value in embodied energy, and their needless demolition is wasteful. The project EIR segmented the required review of the whole of the action of the Port s objectives for the site. The Port s actual goal is to clean up the Ryan Aeronautical Company Historic District for projects outlined in the Airport Master Plan. The EIR instead considered demolition of the historic buildings as a stand-alone abatement project. This was error. Further, the Port refused to consider the likely costs of achieving Airport Master Plan goals via new construction. It simply compared the cost of demolition of historic resources to the costs of their rehabilitation an apples-to-oranges comparison. An apples-to-apples view is needed to compare costs of rehabilitation with the costs of demolition plus new construction of foreseeable Airport Master Plan projects. 4

5 The Port has provided no context for its conclusions that rehabilitation of even one or two of the seventeen historic Ryan buildings will be infeasible, or, even simpler, that already-abated Buildings 180 and 181 cannot remain on-site pending a redevelopment project. The unaddressed question is whether costs of rehabilitation are comparable to a likely replacement structure. (Uphold Our Heritage v. Town of Woodside (2007) 147 Cal.App.4 th 587, 598.) There is no justification for immediate demolition of Buildings 180 and 181 while that question remains open, especially since the open, warehouse-style buildings are adaptable to a wide variety of likely uses. Each of the seventeen Ryan structures that comprise a nationallyimportant historic district has a remarkable story to tell. Retaining two of the buildings will lessen the environmental import of the loss of the district. No urgency exists for their destruction. Without any support in the record, Port counsel made vague statements to the Port Commission and the Superior Court that full demolition of all Ryan historic buildings is ultimately advisable to remove any possibility of future contamination. Such statements were directly contradicted by the EIR. Regardless, a specter of unconfirmed future problems could not justify immediate demolitions that will defeat this Court s jurisdiction. The Ryan Aeronautical Company Historic District at Lindbergh Field deserves the protections of state law, as determined by the full review of 5

6 this Court during an expedited appeal mandated by CEQA. A stay and supersedeas are urgently requested on behalf of the citizens of San Diego. October 12, 2010 Respectfully submitted, Steven P. McDonald Attorney for SOHO Petition for Writ of Supersedeas This petition for writ of supersedeas seeks to stay demolition of Buildings 180 and 181 while the appeal is pending. Appellant alleges: 1. Appellant Save Our Heritage Organisation (SOHO) is a California nonprofit corporation formed in 1969 to lead the San Diego community as a catalyst for historic preservation by raising awareness and appreciation of the region s rich architectural and cultural heritage. SOHO s members include community residents who enjoy and appreciate San Diego s cultural, architectural, and historic resources. 2. Respondents San Diego Unified Port District and its Board of Port Commissioners are the governmental agency and its decisionmaking body that acted as the lead agency under CEQA and approved the 2701 North Harbor Drive Demolition Project. 3. Real Party in Interest San Diego County Regional Airport 6

7 Authority has leasehold and business interests relating to the use of the project site now and in the future. 4. T. Claude Ryan was a monumentally important figure in the development of aeronautics, particularly in San Diego. He was, as the Port recognizes, an important pioneer in the history of local, state, and national aviation from the early 1920s until the late 1960s. (AR1:124.) Much of Ryan s aeronautic work occurred in the seventeen buildings that now comprise the Ryan Aeronautical Historic District adjacent to the Lindbergh (Draft EIR, App.B; Buildings 180 and 181 are 3 rd and 4 th from right side.) 7

8 Field commuter terminal and runway. Aviation manufacturing occurred on the 46-acre site next to the commuter terminal and runways at the San Diego airport from 1939 to (AR1:107.) 5. The Ryan Aeronautical building complex, including aircraft factories and testing facilities, is among the most historic in San Diego. Ryan founded the first commercial airline to operate out of San Diego. He was involved in persuading City leaders to establish Lindbergh Field and built its first buildings. Ryan and his companies were also involved in the first scheduled passenger flight from San Diego, and in the construction of the Spirit of St. Louis, World War II aircraft, and the Lunar Lander. (Draft EIR, App. B, Final EIR, App. J.) 6. A Cleanup and Abatement Order issued by the San Diego Regional Water Quality Control Board in requires remediation of environmental contamination existing in some of the site s 50 buildings as well as in asphalt, soil, and groundwater. (AR1:107, 109.) 7. The subject 2701 North Harbor Drive Demolition Project, also known as the TDY Site Demolition Project, involves the removal of 50 structures owned by the Port that are currently leased to the San Diego County Regional Airport Authority. (AR1:10, 107.) The removal and site remediation were projected to take 15 months. (AR1:110.) 8. The structures proposed to be demolished contain about one million square feet of floor area, including office and support buildings, 8

9 manufacturing buildings, warehouses, and sheds. The project also proposes removal of asphalt, concrete, and other paving materials; removal of demolition materials; and removal of landscaping. (AR1:2.) 9. Among 50 buildings proposed for demolition are seventeen buildings contributing to the Ryan Aeronautical Company Historic District that are eligible for the National Register of Historic Places and the California Register of Historical Resources. (AR1:16.) 10. The 46-acre project site contains public trust lands currently leased to the Airport Authority. (AR1:10.) The property is the subject of an Airport Land Use Plan and San Diego International Airport Master Plan that contemplate continued aviation-related industry including ground transportation and airport support. (Draft EIR at 7-64, 7-65, ) 11. SOHO contends that the required remediation can occur without demolition of the historic buildings, and that Buildings 80 and 81, at least, can be adaptively reused. 12. The project draft EIR was made available for public and agency comment in April 2009, and the Final EIR was made available in July (AR1:3, 12.) 13. A public hearing was held on August 4, 2009, at which time the EIR was certified and the demolition project was approved. (AR1:2-65 [Resolution of Approval and Findings].) In approving the project, the Board of Port Commissioners acknowledged significant environmental impacts 9

10 relating to the loss of historic resources. (AR1:15-18.) 14. Although archival recordation, salvage, and future interpretive display measures were required, the Board readily acknowledged that they could not mitigate the loss of the historic buildings to a level of insignificance. (Ibid.) 15. This action was timely filed in September The parties engaged in settlement discussions but were unable to resolve the issues. Significant abatement of contaminated materials within the historic buildings was completed without any SOHO opposition. 16. The Port agreed to refrain from post-abatement demolition of Buildings 120, 180, and 181 pending judgment in this action. 17. The parties cooperated in preparation of the administrative record and in setting a briefing schedule, and the hearing on the merits of the Petition occurred on September 21, 2010, before the Honorable Ronald S. Prager in the San Diego Superior Court. 18. Judgment denying the Petition was entered on October 5, following a hearing on the form of judgment and to consider SOHO s request for a stay of demolition for buildings 120, 180, and 181 for 20 days. At the hearing, the Port s counsel represented that demolition of Building 120 was imminent, but that demolition of Building 180 was not anticipated to begin before October 18 th, and that demolition of Building 181 would follow thereafter. Counsel agreed to inform SOHO s counsel if the 10

11 schedule were to change. The Court then denied the request for stay and approved the Port s form of judgment. (Draft EIR, App. B; Building 180 at original Lindbergh Field location.) 19. On Sunday, October 10, 2010, Port s counsel notified SOHO counsel Susan Brandt-Hawley by that demolition of Building 180 had been moved up a week and was now anticipated to begin on October 13 th. Demolition of Building 181 was anticipated to begin on October 20 th. On the following day, October 11 th, a federal holiday, a new was transmitted to SOHO s counsel indicating that demolition was anticipated to begin on both buildings on October 13 th. Requests to delay due to the unreasonable notice were declined by Port s counsel. 20. On October 11, 2010, SOHO s counsel received the Notice of Entry of Judgment and an endorsed copy of the Judgment (attached). 11

12 21. The Notice of Appeal (attached) was filed electronically and served today, on October 12, We do not yet have a filed copy. WHEREFORE, Appellant prays that the Court issue an immediate stay followed by a writ of supersedeas ordering the San Diego Unified Port District and their employees, contractors, agents, and any persons acting in concert with them from allowing, engaging, or participating in any deconstruction, demolition, or pre-demolition of Buildings 180 and 181 while this appeal is pending or until further order of this Court. October 12, 2010 Respectfully submitted, Steven P. McDonald Attorney for Appellant SOHO Verification I, Dean Glass, am employed by the non-profit Save Our Heritage Organisation and am authorized by its Board and Executive Director to verify this petition on its behalf. I have reviewed the Petition for Writ of Supersedeas and know its contents. The matters stated in it are true and correct based on my personal knowledge, except as to matters that are stated on information and belief, and as to those matters I believe them to be true. I declare under penalty of perjury that the above is true and correct and is executed this 12 th day of October, 2009, at, CA. Dean Glass 12

13 Memorandum of Points and Authorities Port Commissioner Scott Peters: I m still sympathetic with the idea that some parts of these buildings might be able to be preserved in a way that would help demonstrate our heritage and preserve this historic city... 2 In petitioning the Court for a writ of supersedeas and emergency stay of the demolition of Buildings 180 and 181 of the Ryan Aeronautical Company Historic District at Lindbergh Field, SOHO seeks to protect the jurisdiction of this Court and to preserve the fruits of reversal. (People ex rel. San Francisco Bay v. Town of Emeryville (1968) 69 Cal.2d 533, 537.) The key questions before the Port, and now before this Court, are (1) whether the project EIR adequately considered alternatives to demolition that could accomplish most of the Port s project objectives, and (2) whether any alternatives to full demolition, including simply retaining Buildings 180 and 181 on site in their already-abated condition to await redevelopment, are economically and programmatically feasible. All parties agree that cost will be an important factor in assessing the eventual feasibility of rehabilitation; the practicality of eventual reuse of the aeronautic buildings is also relevant. As noted above, the Port s comparison of costs of demolition with 2 AR2:

14 costs of rehabilitation are unfair and irrelevant without also considering costs of new construction. SOHO s comments on the Draft EIR pointed out that [t]he site is being cleared for a reason: to allow new development [I]n City of Antioch v. City Council of Pittsburg (1986) 187 Cal.App.3d 1325, construction of a sewer line and roads required an EIR to consider future development, even if environmental impacts cannot be precisely known. (Final EIR at 6-70.) The City of San Diego s Historic Site Board agreed: It appears that this is the demolition phase of a larger project which has been segmented from the future development of the site. This approach hampers any meaningful analysis of the feasibility of adaptive re-use of some or all of the buildings within the historic district. Without some thought as to likely uses of the site, the [Port] cannot meaningfully evaluate whether some of the historic structures could be adapted to that new use. (Id. at p ) The Historic Site Board s Senior Planner Cathy Winterrowd met with Port staff to explain further. She asked why the EIR had described the project objective as demolition and removal of all existing buildings, rather than as site abatement, since the project s stated objective to demolish 50 buildings created a circular argument as to why demolition was necessary to achieve that objective. (AR3:1211.) Planner Winterrowd was right. The Port s project objectives and project descriptions are too narrowly stated and resulted in a dangerously 14

15 deficient EIR. A similar grave error occurred in Uphold Our Heritage v. Town of Woodside, supra, 147 Cal.App.4 th 587. Apple magnate Steve Jobs proposed to demolish the historic Jackling House, and an EIR was prepared. (Id. at ) Mr. Jobs did not want to rehabilitate the historic home. (Id. at 595, n.4; 602.) He emphasized that his project objective was to build a new home, and he argued that CEQA did not require consideration of alternatives that did not allow him to achieve his objective. In ruling against him and upholding the trial court s writ, the Court instead interpreted a more appropriately-implied project objective to be the desired end result of a habitable single-family home on the property. (Id. at 595, n.4.) Uphold Our Heritage further held that Jobs personal preference for a new home was irrelevant to the legal question of whether rehabilitation provided a feasible option to achieve a single-family home. (Id. at 602.) And without cost data for the not-yet-designed new home, there is no cost comparison or analysis supporting any of these findings that each of the alternatives are economically unjustifiable.... That the alternatives may cost millions of dollars is not enough information as it has no context. It is certainly possible that Jobs may ultimately seek to build a house which costs more than simply rehabilitating the existing house... All of this is unknown to the Town Council, and thus their finding of economic infeasibility is not supported by substantial evidence. (Uphold Our Heritage, supra, 147 Cal.App.4 th 587, 598, italics added.) 15

16 Here, the redevelopment of the Ryan site is anticipated and a likely range of uses is known. Demolition of the historic district, and particularly Buildings 180 and 181 that may yet be saved, violates CEQA s procedural and substantive mandates without EIR consideration of the feasibility of adaptive reuse. Since the equities favor allowing Buildings 180 and 181 to remain standing while the merits of this public interest action are considered, an emergency stay and supersedeas should surely issue. Counsel s Certificate of Word Count per Word:mac 2008 : 3186 October 12, 2010 Respectfully submitted, Steven P. McDonald Attorney for Appellant SOHO 16

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23 I ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, state bar number; and address): T Susan Brandt-Hawley Brandt-Hawley Law Group P.O. Box 1659 Glen Ellen CA TELEPHONE NO; FAX NO. (Optional): ADDRESS (Optional): ATTORNEY FOR (Name): T SUPERIOR COURT OF CALIFORNIA. COUNTY OF SAN DIEGO STREET ADDRESS: 330 West Broadway MAILING ADDRESS: CITY AND ZIP CODE: BRANCH NAME: PLAINTIFF/ DEFENDANT/RESPONDENT: U [II (707) (707) susanbh@preservationlawyers.com Save Our Heritage Organisation, Petitioner San Diego, CA Central Steven P. McDonald SBN The McDonald Law Firm, LC 7855 Fay, Suite 350 Tel: La Jolla, CA Fax: Save Our Heritage Organisation City of San Diego, et al. x NOTICE OF APPEAL T;T CROSS-APPEAL (UNLIMITED CIVIL CASE) T T L \ CASE NUMBER: FOR COURT USE ONLY APP 002 T LI CU-TT-CTL Notice: Please read Information on Appeal Procedures for Unlimited Civil Cases (Judicial Council form APP-001) before completing this form. This form must be filed in the superior court, not in the Court of Appeal. 1. NOTICE IS HEREBY GIVEN that (name): appeals from the following iudgment or order in this case, which was entered on (date); T;] T-;] lj Judgmenafterjury trial Judgment after court trial Default judgment li irlnrnnnt»-uf l»- an A»A» nr» -u-lb}.-». A.- l.~»v.».» J,-..-»A» A.~.. `Li».. JUC Qm 'li BTIEF HI'] Ol'CI l` QTHFIIIITQ 3 SUl'T' m3 'y IUGQITTGITI TTTOUOI ltl I V..».- -. A-»»- -- ~ Judgment of dismissal under Code of Civil Procedure sections 581d, , , or 583,430 lj Judgment of dismissal after an order sustaining a demurrer III An order afterjudgment under Code of Civil Procedure section 904.1(a)(2) lj An order orjudgment under Code of Civil Procedure section 904.ʻl(a)(3) (13) lj x Save Our Heritage Organisation, Petitioner October 5, 2010 Other (describe and specify code section that authorizes this appeal): 2. For cross-appeals only: a. Date notice of appeal was tiled in original appeal: b. Date superior court clerk mailed notice of original appeal: c. Court of Appeal case number (if known): Date: October 12, 2010 Susan Brandt-Hawley (TYPE OR PRINT NAME) (SIGNATURE OF PARTY OR ATTORNEY) Form Approved for Optional Use Judicial Council of California APP-002 [Rev. July 1, 2010] NOTICE OF APPFAI lʼ\i I I-l'\l-l\Pl\\J\J\J"l"\F ICR(')SS..APPFAI Irl-l"\L. ll \\JI I...IIIII INI IMITFD I L..IJ Cl\lll \JI\III. lʼ2a F\ \JI"\\}K]

24 Save Our Heritage Organisation v. City of San Diego, et al CU-TT-CTL x P.O. Box 1659 Glen Ellen, CA x x Mark C. Zebrowski Linda L. Lane Morrison & Foerster High Bluff Drive, Suite 100 San Diego CA /12/10 Glen Ellen, California Amy Gonzalez San Diego Airport Authority 3225 North Harbor Drive San Diego CA October 12, 2010 Jeanie Stapleton

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26 Save Our Heritage Organisation v. San Diego Unified Port District, et al. San Diego County Superior Court Case No CU-TT-CTL PROOF OF SERVICE I am a citizen of the United States and a resident of the County of San Diego. I am over the age of eighteen years and not a party to the within entitled action; my business address is 7855 Fay Avenue, Suite 350 La Jolla, CA On October 12, 2010, I served one true copy of: Petition for Writ of Supersedeas and Temporary Stay of Demolition X X By placing a true copy thereof enclosed in a sealed envelope and postage thereon fully prepaid, in the United States mail in Glen Ellen, California addressed to the persons listed below. By ing a copy to counsel as noted below X X Mark C. Zebrowski Linda L. Lane Morrison & Foerster High Bluff Drive, Suite 100 San Diego CA mzebrowski@mofo.com llane@mofo.com Amy Gonzalez San Diego Airport Authority 3225 North Harbor Drive San Diego CA agonzale@san.org I declare under penalty of perjury, that the foregoing is true and correct and is executed on October 12, 2010, at, California. Steven P. McDonald