Prop. B Lawsuit Extends Battle Over San Francisco Waterfront Height Limits

Prop. B, San Francisco, Pier 70, California, Jeffer Mangels Butler & Mitchell LLP, Forest City, Dogpatch, Mission Bay, Potrero Hill, Mission Bay, AT&T Park

Prop. B, San Francisco, Pier 70, California, Jeffer Mangels Butler & Mitchell LLP, Forest City, Dogpatch, Mission Bay, Potrero Hill, Mission Bay, AT&T Park

By Robert Celaschi

Developers are in legal limbo now that the state has filed a lawsuit to overturn San Francisco’s Proposition B.

[contextly_sidebar id=”VJcFWmGVFOgumWio4CJVKZgphDdx5sMp”]Prop. B, which voters approved by 59 percent this past June, requires voters to go back to the polls and approve any exceptions to the current height limit along the city’s waterfront, which ranges from 40 to 84 feet.

In July, the state sued in San Francisco Superior Court to overturn the measure. But a decision could be a long time in coming.

“At this point the only court date that has been scheduled is the case management conference for Dec. 17,” said Jennifer Lucchesi, executive director of the California State Lands Commission. No trial date has been set.

The lawsuit, filed by Attorney General Kamala Harris on behalf of the Lands Commission, centers on a 1968 law called the Burton Act, which transferred the control of the harbor from the state to the city and county of San Francisco.

Part of the state’s argument is that the waterfront should be managed for the benefit of all of California and not just the citizens of San Francisco.

“The Legislature has specifically directed that the right to initiative does not apply to lands granted by the Legislature to municipalities such as the land granted by the Burton Act to the City,” the lawsuit states.

In response, San Francisco City Attorney Dennis Herrera said in a prepared statement, “For decades, land use decisions involving San Francisco’s waterfront have included voters, elected leaders and appointed members of our Planning and Port Commissions.”

He pointed to the Waterfront Land Use Plan of 1990, which allowed the development of AT&T Park for baseball’s Giants.

“San Francisco’s deliberative decision‐making process on waterfront land use has never been successfully challenged, and I intend to defend it aggressively,” Herrera said.

In the meantime, several projects fall under the Prob. B umbrella, including the development of Pier 70 and a mixed-use project by the San Francisco Giants on 27 acres in Mission Bay.

Forest City, the developer of Pier 70, is going ahead with its own ballot measure to get approval for buildings of up to 90 feet.

“We consider Prop. B the guiding law and will of San Francisco voters. We are absolutely committed to working under Prop. B, and we are moving forward with our campaign,” said Alexa Arena, senior vice president for Forest City.

Forest City’s measure on this coming November’s ballot is officially the Union Iron Works Historic District Housing, Waterfront Parks and Jobs Initiative. It covers a 28-acre site bordering on the Dogpatch, Mission Bay and Potrero Hill neighborhoods. It would raise the height limit at the property from 40 feet to 90 feet, the top of the tallest existing historic structure on the site. The initiative has found support from the Dogpatch Neighborhood Association, the Potrero Boosters Neighborhood Association, Mayor Ed Lee and former Mayor Art Agnos.

Lucchesi wouldn’t speculate on whether a developer would be bound by the heights approved in a ballot measure if Prop. B were subsequently nullified.

“I think it does leave some questions up in the air for the developers, but I don’t know anybody who would be holding back,” said David Cincotta, a land use attorney of counsel at Jeffer Mangels Butler & Mitchell LLP, and a former deputy director of Housing and Community Development for the city. “It’s wise to keep moving.”

The Pier 70 project is far enough along that voters know what it’s all about, he said.

But he noted that smaller projects might face more problems. That could include hotels and condominiums. The smaller the project, the less likely voters would be familiar with details, and the larger percentage of the budget would have to be devoted to mounting a campaign for a ballot initiative.

“I just think that the lawsuit is a little silly. Land use matters are generally local matters. To try to say the state is the only one who can deal with these issues along San Francisco’s port is disingenuous,” Cincotta said.

While its easier for developers to figure out the goals of the state agencies and the people running them than to read the minds of the voters, he said, “I would definitely be surprised” if the state prevails.

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