By Tim Redmond
Whatdya know? A few hours after I questioned Randy Shaw’s analysis of the legal weakness of the waterfront height measure (and said a lawsuit based on his concerns wouldn’t work), somebody has sued to force the measure off the ballot. And guess what: Two of the three plaintiffs were supporters of Prop. B, which would have allowed the 8 Washington project – and the legal theory they offer has nothing to do with Randy’s issue.
Corinne Woods, Michael Theriault, and Tim Colen filed suit Feb. 14th in an effort to get the initiative thrown off the ballot. Represented by the high-powered law firm of Remcho, Johansen and Purcel, they offer two arguments that amount to the same thing: Since the waterfront is public trust land, controlled by the Port of San Francisco, the voters have no right to attempt to regulate development.
That’s kind of crazy, since Prop. B – a ballot measure to allow development on Port land – was sponsored by these same folks. And it would mean that a long list of ballot measures controlling waterfront development, including Prop. H in 1990, which banned hotels on the waterfront and mandated a Waterfront Master Plan, would be invalid.
In essence, the suit relies on two arguments. The San Francisco waterfront, it says, is actually state land, under the Tidelands Trust concepts, with the Port given state authority to decide on its use. And the City Charter gives the Port the same authority – meaning the voters have no say.
That’s a lot to think about: The notion that, by law, the voters of San Francisco (who can elect a mayor who appoints the Port Commission) can’t vote on rules for how that land is used. But it’s probably the last, best hope that waterfront developers have, because if they can’t get it invalidated legally, they’re going to lose at the ballot box.
The case is Woods v. John Arntz, CPF 14-513503. If a judge agrees with the plaintiffs, it would mean a radical change in how San Francisco approaches waterfront land use.
