S.F. Judge Allows Challenge to Waterfront Height Limits to Proceed

The state of California's legal battle to overturn a San Francisco waterfront development measure is still alive after a judge on Wednesday denied a city motion to dismiss the action.

The suit by the California State Lands Commission challenges Proposition B. The commission says the measure violates state law by usurping the Port of San Francisco's authority over 7.5 miles of waterfront.

The commission also argues that by limiting the port's ability to develop its properties, granted to the city under the 1968 Burton Act, Prop. B interferes with the state's long-established interest in how the waterfront is used.

The initiative, passed by 59 percent of voters last June, requires developments to get voter approval if they exceed height limits of between 40 and 80 feet.

"Proposition B takes a portion of legislative authority away from the port. Not only does it set in stone height limits today, it takes away the future ability of the port to change those height limits without coming and getting approval of the people of the city of San Francisco," California Deputy Attorney General Joseph Rusconi argued.

But Deputy City Attorney Christine Van Aken defended Prop. B, contending the port hasn't had exclusive authority over the shoreline since the state transferred waterfront lands to the city in 1968 under an agreement known as the Burton Act.

"The claim that complete authority over the waterfront actually resides with the port, under the Burton Act, and not with the Board of Supervisors and not with the people of San Francisco, is irreconcilable with 40 years of practice in San Francisco," said Van Aken. "The height limits that are currently in effect on the waterfront were not set by the port. They were set by the Board of Supervisors."

San Francisco Superior Court Judge Suzanne Bolanos threw out one of the state Lands Commission's principal arguments: that by limiting the port's authority, Prop. B illegally conflicts with San Francisco City Charter.

But Bolanos rejected the city's attempt to dismiss four other parts of the state's lawsuit -- essentially, the Lands Commission assertions that Prop. B harms the port and conflicts with state interests -- and ordered a hearing on those issues May 20.

Jon Golinger, who led the campaign to pass the measure, was pleased that "Prop. B remains the law of the land," but expressed concerns about Bolanos' tentative ruling.

"This actually creates more uncertainty for developers and the port, rather than making clear what the rules are moving forward," he told reporters outside the courtroom.

The Lands Commission, he said, has been "focused on money, money, money, but the value of the waterfront includes that it's a resource-rich place. But views, recreation and open space are worth a lot to everyone in California, and that should be something we hope the judge will consider."

Tim Cohen, executive director of the San Francisco Housing Action Coalition, wrote in a blog post that the judge's decision "indicates the measure may be in trouble."

"Today’s ruling gives us optimism that Prop. B might not withstand legal scrutiny and may no longer be a barrier to building thousands of homes at all levels of affordability on San Francisco’s port property," Cohen said in a statement.