- Prop B Puts Proposed Construction in Jeopardy
A lawsuit challenging the Waterfront Height Limit ballot measure was denied by the San Francisco Superior Court on March 18. The measure will appear on the June 3 ballot as Proposition B and, if passed, would impose tighter restrictions on waterfront development by requiring voter approval for projects that exceed existing height limits.
San Francisco Superior Court Judge Marla Miller cited case law that guides the court to be cautious in pre-election challenges to ballot initiatives. The judge wrote that, “The threshold issue for this court is whether the validity of the proposed initiative should be reviewed before the election, rather than allowing the electorate to vote on the initiative, which has already qualified for the ballot.” She noted that pre-election challenges are more appropriate when challenging the validity of signatures to qualify a measure, but that opponents of the measure could still challenge Prop B after the election, if it passes.
The court’s ruling noted that, “Petitioners also contend that the initiative is invalid under the exclusive delegation doctrine, because the Burton Act delegated authority over the waterfront to the Harbor Commission of the City and County of San Francisco.” Miller wrote in her ruling that “the Court is not determining the merits of the ultimate issue of the validity of the initiative. Instead, the Court finds that it is appropriate to ‘leave the challenge for resolution with the benefit of the full, unhurried briefing, oral argument, and deliberation that generally will be available after the election.’” The judge cited a Supreme Court ruling on election challenges that noted “because this type of challenge is one that can be raised and resolved after an election, deferring judicial resolution until after the election – when there will be more time for full briefing and deliberation – often will be the wiser course.”
Attorney Robin Johansen of Remcho, Johansen & Purcell represented San Francisco Building & Construction Trades Council Secretary-Treasurer Mike Theriault, affordable housing advocate Tim Colen, and open space and parks activist Corinne Woods in the lawsuit. She said that basically the Court ruled that once the ballot process has started it shouldn’t be stopped. “It’s unfortunate because it impacts all the projects the Port has been planning for many years,” Johansen said. “They will be delayed at least until after the election and then be delayed further as it takes time for the challenge to the measure to work its way through the courts. It clearly interferes with what the state has said is the Port’s jurisdiction over waterfront development.”
The Waterfront Height Limit initiative could impact construction of the Golden State Warriors Arena proposed for Piers 30-32 and the condos planned nearby, as well as projects at Pier 70 and Seawall Lot 337 south of AT&T Park. As Organized Labor reported last month, the projects along the waterfront that are in the planning stages have been developed over many years, with developers working with city planners and the community. Construction of affordable housing will be stalled or stopped if Prop B is passed. The various projects proposed for the waterfront include about 2,700 housing units, including 500 permanently affordable units that would be built on site and funding for more affordable units off-site. The San Francisco Chronicle reported that the measure could cost the port $8.5 billion in delayed, reduced or lost revenue.
“The proponents of the initiative clearly don’t care about homes for San Franciscans or jobs at the port,” Theriault said. “They care only about their views. We need to do the responsible thing and vote this down.”
Proponents of limiting waterfront development portrayed the court ruling that allows Prop B to stay on the ballot as a victory for democracy against vested interests. Meanwhile, the height limits initiative campaign was “funded exclusively by $75,000 donated from Barbara and Richard Stewart, a wealthy couple who live in the Golden Gateway Apartments and were the major backers opposing 8 Washington, which would have been built between their building and the water,” the Chronicle reported.