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Judge tentatively rules in favor of going to trial in Prop. B waterfront height limit lawsuit

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People have lunch on a rooftop along the Embarcaderoi waterfront in San Francisco, Calif. on July 6, 2016. (Photo by Joel Angel Juárez/Special to S.F. Examiner)

If a tentative Superior Court ruling holds, San Francisco voters’ right to determine shoreline height limits may go to trial.

Legal arguments stemming from the State Lands Commission’s effort to sue San Francisco over waterfront height limits faced harsh critique from a San Francisco Superior Court judge Wednesday.

Ultimately, Judge Suzanne Ramos Bolanos tentatively ruled The City’s argument in defense of Proposition B, which touted the slogan “No Wall on the Waterfront,” was strong enough to go trial — but not strong enough for her to rule in favor of The City beforehand.

The lawsuit from the State Lands Commission, which is chaired by Lt. Gov. Gavin Newsom, alleges that state law trumps local voter-approved waterfront height limits, a legal attack aimed at Prop. B which was passed by San Francisco voters in 2014.

Prop. B empowered voters to have control over development height limits, and voters have since approved height limits for developments at Pier 70 and Mission Rock. Both housing proposals featured more affordable housing because of deals made due to Prop. B, the measure’s proponents said.

SEE RELATED: No settlement reached in SF’s Prop. B waterfront height limit lawsuit

Both The City and the State Lands Commission sought an early ruling in the matter, and both were preliminarily were denied. At the end of Wednesday’s proceedings, Balanos said she was leaning toward upholding her tentative ruling for the matter to go to court.

“The commission has failed to explain how or whether Proposition B’s stated intent conflicts with statewide interests,” Bolanos wrote in her tentative ruling. “Further, the commission lacks evidence that Proposition B, as applied to Pier 70 and Mission Rock projects, subjugated statewide interests to local affairs.”

In Superior Court Wednesday, Balanos scrutinized California Deputy Attorney General Joel Jacobs’ arguments on behalf of the State Lands Commission.

“I believe there are too many disputed facts at this juncture,” Bolanos said.

Balanos asked if it was the state’s interest to preserve the waterfront, to which Jacobs answered “certainly,” but reducing height limits of residential towers along the shoreline would make it difficult to raise money to fund other activities at the Port of San Francisco.

“Money is used to promote public trust uses,” Jacobs told the judge, and if people want recreational uses to be created on the waterfront, “you need to generate money.”

But Deputy City Attorney Christine Van Aken said Jacobs failed to prove that Prop. B stopped the Port from making money at all.

Jacobs further argued that when the voters decide height limits, “we have no idea” if they have the public trust as a motivation in their decision.

“Voters are a black box,” he argued, and reducing heights, and profitability of projects may motivate their vote — not state interests, which would be the provenance of commissioners on a government body.

The judge quickly rebuked him. “You can’t speculate that was one of the reasons” voters approved projects, she said. “There’s no evidence.”

The judge continued, “Isn’t it true that you haven’t conclusively proven that with Mission Rock, and Pier 70 projects, that there was a financial loss?”

Jacobs agreed there was no evidence, but added, “Generally there were analyses at the time.”

Van Aken picked apart Jacobs’ arguments one by one and said, “There’s no intrinsic state interest in a 380-foot tower, or an 80-foot penthouse.”

Ultimately, if the judge doesn’t rule in favor of either side before a trial, Jacobs told reporters that the state will agree to go to court.

But in court under the scrutiny of Balanos, Jacobs said his arguments may not change between now and then.

“I don’t know that the evidence will be substantially different in court,” Jacobs said.

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