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SF defiant over State Lands Commission lawsuit against Prop. B

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Mike Koozmin/S.F. Examiner file photo
San Francisco locals' use of the word “native” should be interpreted as shorthand for wishing to preserve their roots.

The City has promised to aggressively defend a measure passed last month that forces waterfront height-limit increases in San Francisco to go before voters after a lawsuit was filed Tuesday challenging the measure's validity.

The lawsuit, filed by the California State Lands Commission against The City, questions the legality of Prop. B, which passed by a decisive margin in the June 3 primary election.

The commission, comprised of Lt. Gov. Gavin Newsom, State Controller John Chiang and Finance Director Michael Cohen, asserts that while the waterfront is managed by The City's Port Commission, the California Legislature retains ultimate authority of the property.

Strong reactions from those who support Prop. B, including City Attorney Dennis Herrera and the No Wall on the Waterfront coalition, rang out Tuesday.

“With [Tuesday'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,” Herrera said in a statement.

Prop. B passed 71,421-49,870, giving voters a voice for developments that would exceed existing height limits along the 7.5-mile strip from Fisherman's Wharf to the Hunters Point Naval Shipyard under Port of San Francisco authority, which vary from as low as 40 feet on piers to 105 feet on Seawall Lot 330 just south of the Bay Bridge.

But the Lands Commission contends that The City has no power to grant the voters that option, as the Port Commission was entrusted to manage the land under the state's 1968 Burton Act.

“While the commission respects the power of the initiative as it relates to local and municipal affairs, when it comes to the management of state property including public-trust land, the Legislature has specifically delegated the management responsibility for those lands to the San Francisco Port Commission,” said Jennifer Lucchesi, executive officer for the Lands Commission.

Herrera fired back against the lawsuit, promising to “aggressively” defend Prop. B.

“That view represents a radical departure in law and practice from land use decision-making in San Francisco and elsewhere,” Herrera said. “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.”

Jon Golinger, co-chair of the No Wall on the Waterfront coalition, called the lawsuit “a slap in the face” to everyone who has voted on waterfront development, including Prop. B, over the years.

“At its core is really a raw political power play,” Golinger said. “It's an attempt to silence The City in regards to what happens on the waterfront.”

But the Chamber of Commerce, a longtime opponent of the measure, commended the Lands Commission's lawsuit.

“The state's made a good case that local jurisdictions don't have the authority to directly impact land-use decisions on state owned property,” said Jim Lazarus, senior vice president of public policy for the chamber.

Lazarus emphasized that the issue could affect more than San Francisco's waterfront.

“There are ports up and down the coast of California that operate lands under [state] trust,” Lazarus said. For instance, he added, “the Port of San Diego is a local agency chartered by state law that oversees port property … owned by the state of California, similar to San Francisco's circumstance.”

Tim Colen, executive director for the Housing Action Coalition and a plaintiff in a separate lawsuit seeking to block Prop. B earlier this year, said this case could mark the first time the measure's validity has been explored in court. The first lawsuit was rejected by a judge “without a whiff of discussion” as to its merits, according to Colen.

“We've always been convinced that Prop. B was illegal, and we hope that it will be tried now on its merits, which it never has been before,” Colen said. “Now with the State Lands Commission taking action, finally we get to hear both sides argued. And let's see who prevails.”

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