Dennis Herrera Throws Down: “Vows Aggressive Defense of the Prop B Waterfront Development Voting Measure”

All right, it’s on, the defense of Prop B (2014) is on:

“San Francisco’s participatory waterfront land use decision-making has included voters, elected leaders and appointed commissioners for decades, City Attorney argues

SAN FRANCISCO (July 15, 2014) — The California State Lands Commission today sued San Francisco to invalidate Proposition B, an initiative measure passed in the June 3 election that requires voter approval for waterfront development height increases on property owned or controlled by the Port of San Francisco.  The legal challenge filed in San Francisco Superior Court contends that the California legislature specifically intended to prohibit local voters from exercising authority over bay and coastal public trust lands, strictly limiting management of state tidelands to designated trustees.  In its legal action today, the State Lands Commission argues that the sole trustee responsible for sovereign tidelands in San Francisco is the city’s Port Commission.  The State Lands Commission is additionally seeking a preliminary injunction to bar San Francisco from enforcing Prop B.

In response, City Attorney Dennis Herrera issued the following 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.  It’s a participatory process that enacted a comprehensive Waterfront Land Use Plan in 1990, developed a showplace ballpark for the Giants, and continues to protect an urban waterfront that is the envy of cities worldwide.  San Francisco’s deliberative decision-making process on waterfront land use has never been successfully challenged, and I intend to defend it aggressively.  With today’s lawsuit, the State Lands Commission seems to have embraced the notion that any local initiative — and, by extension, any land use regulation approved by a Board of Supervisors or Planning Commission — affecting port property is barred by state law, and therefore invalid.  That view represents a radical departure in law and practice from land use decision-making in San Francisco and elsewhere.  While the City must certainly honor its obligations as trustee in managing public trust property, it is a legally and practically untenable position to argue that San Francisco’s voters and elected officials have no direct say over how our city’s waterfront is developed.”

San Francisco voters enacted Prop B, a measure requiring voter approval for waterfront development height increases, in the June 3, 2014 Consolidated Direct Primary Election by a margin of 59 percent (71,421 votes) to 41 percent (49,870 votes), according to the official results tabulated by the San Francisco Department of Elections.

The California State Lands Commission is a unit of state government that exercises jurisdiction and management control over certain public lands received from the United States when California became a state in 1850.  The commission is charged in part with holding approximately four million acres of the state’s submerged lands and coastline in trust for the benefit of all Californians, subject to public trust purposes for water related commerce, navigation, fisheries, recreation, open space and other recognized uses.  The commission is currently comprised of three members: Lieutenant Governor Gavin Newsom; State Controller John Chiang; and the State Director of Finance Michael Cohen, a cabinet level officer appointed by Governor Edmund G. Brown Jr.  The commission is represented in the legal action by the California Attorney General’s Office.

The State of California transferred responsibility for San Francisco’s waterfront to the city in 1969 through state legislation from the preceding year known as the Burton Act.  Under terms of the transfer, the city created a Port Commission with authority to manage the city’s waterfront for the citizens of California.  On Nov. 4, 1990, San Francisco voters passed Proposition H, an initiative ordinance that prohibited hotels and other “unacceptable non-maritime land uses” on the waterfront, and also required city policymakers to prepare a comprehensive Waterfront Land Use Plan to define acceptable uses, policies and land use information applicable to waterfront property under Port of San Francisco’s control.  Developed through a lengthy public planning process, and adopted by the Port Commission in 1997, the Waterfront Land Use Plan has allowed the Port Commission to work collaboratively with the San Francisco Planning Commission and Board of Supervisors, the San Francisco Bay Conservation and Development Commission, and the State Lands Commission to align the various land use plans and policies held by each entity.  Port projects must comply not only with the Waterfront Plan, but also adopted plans of the Planning Commission and BCDC.  The Port also consults with the State Lands Commission on public trust issues in the planning process.

In its civil complaint today, attorneys for the State Lands Commission argue that 2010 amendments adding Section 6009 to the California Public Resources Code represented a significant change in state law “for the specific purpose of prohibiting local initiatives” from exercising authority over bay and coastal public trust lands.  However, the commission’s legal contention runs counter to an uncodified section of the statute making clear that the “addition of Section 6009 to the Public Resources Code…does not constitute a change in, but is declaratory of, existing law.” (Stats. 2010, Ch. 330 § 4.)

The case is: California State Lands Commission v. City and County of San Francisco, San Francisco Superior Court Case No. CGC-14-540531, July 15, 2014.  Additional information on the San Francisco City Attorney’s Office is available at: http://www.sfcityattorney.org/.

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