Black Historical Society Loses Bid To Preserve Downtown San Diego Landmarks

CP&DR Staff on
Feb 1, 2006

A San Diego historical society’s lawsuit over a housing development on a site the society considered historical has been dismissed by the Fourth District Court of Appeal. The appellate panel upheld a lower court, which dismissed the case because the historical society had neither submitted the administrative record nor filed an opening brief.

The lawsuit concerned the fate of four early-20th-Century buildings on J Street in San Diego’s East Village. The buildings were once owned by Lillian Grant, a pioneering black businesswoman and one of the first black women to own property downtown. In 2002, the city’s Historical Resources Board designated the Grant properties as historic. However, the City Council overturned that decision the following year. Soon thereafter, the city approved demolition of the structures and development of the 74-unit Lillian Place Apartments, a low-income project proposed by the nonprofit Wakeland Housing and Development.

The Black Historical Society sued the city and Wakeland in March 2004. The society argued that the city failed to implement the city’s California Environmental Quality Act (CEQA) guidelines, that the project violated the city’s development code and that the project improperly used funds from the Horton Plaza redevelopment project.

The Society asked the city to prepare the administrative record. The city requested a $2,000 deposit for preparation of the record, but the society refused to pay. On August 24, 2004, San Diego County Superior Court Judge Linda Quinn ordered the parties to meet and confer on three things: the cost of the administrative record, an expedited briefing schedule and whether the society had brought the case under CEQA. On September 2, the city said the administrative record was complete and ready for review. That same day, the court ordered the society to pay for the record’s preparation and file an opening brief by September 21, a deadline the court later extended to October 12, 2004.

When the society missed the October deadline, Wakeland asked the court to dismiss the lawsuit. The historical group responded that it had been prevented from filing its opening brief because the city would not provide the administrative record without payment. Quinn dismissed the lawsuit on October 28, 2004, noting that the society had never asked her to modify the September 2 order.
Things had proceeded quickly because Wakeland faced the loss of low-income housing tax credits if development did not begin by November 15, 2004. (Wakeland met the deadline, and the project is scheduled to be complete this summer.)

The society appealed the dismissal. The group’s opening brief was due in February 2005, but the Fourth District granted an extension because the society said it was in negotiations likely to result in a settlement. However, Wakeland then protested that it was not negotiating and had no intention of settling. So the court rescinded the extension in March 2005 and directed the society to file its brief within five days. The society responded by filing an emergency petition with the California Supreme Court seeking a change of venue. The Supreme Court denied the society’s request, and the group filed its opening brief the next day, April 19, 2005.

The society contended that the lower court could not dismiss the lawsuit, that the society had been prevented from filing its Superior Court brief because the city was holding the administrative record hostage, that the record should have been released and that the society had to pay for the record’s preparation only if it lost the lawsuit. The Fourth District quickly disposed of all of the arguments.

Usually, there is a 45-day notice period before a court will grant a motion to dismiss. Judge Quinn acted quicker, though, because Wakeland contended it would be harmed if it missed the November 15, 2004 deadline.

“[T]he record contains a showing of immediate harm,” Presiding Justice Judith McConnell wrote for the Fourth District, Division One. “The court was entitled to conclude the construction deadline presented sufficient urgency to support both an expedited briefing schedule and expedited resolution of Wakeland’s motion to dismiss after the society had failed to file the administrative record or to file an opening brief.”

As to the society’s contentions regarding the administrative record, the court pointed out that the law generally requires the petitioner — the society in this case — to bear the cost of record preparation. Second, McConnell noted, Judge Quinn made an explicit order for the society to pay, and the society never asked Quinn to release the record without prepayment. Additionally, the society never sought alternative means of obtaining the record, such as preparing the record itself, McConnell wrote.

Wakeland asked the Fourth District to sanction the society for filing a frivolous appeal, but the court declined.

The Case:
Black Historical Society v. City of San Diego, No. D045481, 05 C.D.O.S. 10124, 2005 DJDAR 13820. Filed November 4, 2005. Ordered published December 1, 2005.

The Lawyers:
For Black Historical Society: Kenneth N. Hamilton, (619) 337-8491.
For the city: Deborah M. Smith, city attorney’s office, (619) 533-5500.
For Wakeland Housing and Development: Jenny Goodman, Sullivan, Wertz, McDade & Wallace, (619) 233-1888.