Closing arguments were made last Wednesday in a trial over the validity of a San Francisco ballot initiative requiring voter approval for waterfront development height increases.
In June 2014, San Francisco voters passed Prop B, requiring voter approval for any construction project on the waterfront that would exceed height limits in effect at the time. It concerns an area encompassing about 7 ½ miles of the San Francisco waterfront along the Bay, including most of the property between Fisherman’s Wharf and India Basin, which the San Francisco Ports Commission controls in a public trust for the benefit of the people of California.
Prop B followed on the heels of the successful November 2013 “No Wall on the Waterfront” initiative that blocked the proposed 8 Washington Street development.
To date, Prop B has delayed and impacted construction of three high-visibility projects along the shoreline, including the originally-proposed Golden State Warriors’ complex on Piers 30-32 (ultimately relocated to Mission Bay); the SF Giants Mission Rock development (approved by voters in November 2015); and the Pier 70 Redevelopment Initiative (approved by voters in November 2014).
Barely one month after Prop B took effect, the State Lands Commission filed suit, claiming that the San Francisco electorate lacked legal authority to pass the initiative, and that Prop B improperly advances local land use interests over statewide concerns. The lawsuit asserts that a 1968 law vests the autonomous Port Commission (and not City voters), with exclusive planning and management authority over the waterfront. The Lands Commission argues that Prop B subjugates statewide interests by giving San Francisco voters the power to permanently block development at a size and scale that would maximize revenue to the Port, which is needed to maintain and preserve the waterfront – a matter of statewide interest.
The City disagrees, arguing that state law doesn’t prohibit voters from exercising the right of initiative over waterfront lands, and that Prop B advances statewide interests by, among other things, protecting views of and public access to the waterfront. The City also claims that Prop B hasn’t impeded development of projects beneficial to the public trust.
This isn’t the first challenge Prop B has seen – Tim Colen, former executive director of the Housing Action Coalition, also sued the City in a pre-election effort to invalidate Prop B. However, that lawsuit was later dismissed by the courts.
In June 2017, Judge Suzanne Bolanos of the San Francisco Superior Court denied the City’s request to throw out the suit and allowed it to move to trial, but noted that the Commission had failed to explain how or whether Prop B’s stated intent conflicts with statewide interests.
The trial in this matter began Wednesday, January 10, and concluded last Wednesday. No decision has yet been issued, but the court has requested proposed statements of decision be submitted by both parties by February 9th.
Authored by Reuben, Junius & Rose, LLP Attorney, Melinda Sarjapur
The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient. Readers should consult with legal counsel before relying on any of the information contained herein. Reuben, Junius & Rose, LLP is a full-service real estate law firm. We specialize in land use, development, and entitlement law. We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision, and condominium work.