Lawsuit challenging Prop. B leaves Pier 70 development initiative uncertain

San Francisco's waterfront property is swimming in uncharted waters.

With the legality called into question this week of Proposition B — a measure passed in June requiring voter approval for all development projects that exceed building-height limits along The City's waterfront — the future of a separate initiative seeking to raise the height limit for a project at Pier 70, south of Mission Bay, remains uncertain.

The Union Iron Works Historic District Housing, Waterfront Parks, Jobs and Preservation Initiative asks voters whether the height limit for buildings at the 28-acre portion of Pier 70 slated for mixed-use development can be raised from 40 to 90 feet.

The initiative achieved its required 9,702 signatures to qualify for the Nov. 4 ballot on Wednesday and will go before voters despite a lawsuit that contends California maintains ultimate authority of San Francisco's waterfront, the development firm confirmed Thursday.

“We consider Prop. B the guiding law and will of San Francisco voters,” Alexa Arena, senior vice president of Forest City, wrote in an e-mail to The San Francisco Examiner through a proxy. “We are absolutely committed to working under Prop. B and we are moving forward with our campaign.”

The lawsuit, filed in San Francisco Superior Court on Tuesday by the California State Lands Commission against The City, challenges whether voters can weigh in on development projects that exceed building height limits along a 7.5-mile span of the waterfront, including Pier 70.

The Lands Commission, comprised of Lt. Gov. Gavin Newsom, State Controller John Chiang and state Finance Director Michael Cohen, asserts in its complaint that while the waterfront is managed by The City's Port Commission, the California Legislature retains ultimate authority of the property, per the Burton Act of 1968.

The state's oversight would prohibit city residents from voting on ballot measures such as the one addressing development heights at Pier 70, according to the complaint.

“The Legislature has delegated directly to the Port the management authority over the lands at issue that are of statewide significance. Thus, the right to local initiative does not apply to the lands held by the City and administered by the Port,” Lands Commission Chief Counsel Mark Meier wrote in a letter dated July 2 to City Attorney Dennis Herrera.

The letter, obtained by The San Francisco Examiner, expresses the commission's “concerns about the legality of this proposed initiative.”

Tuesday's lawsuit mirrors the letter's argument regarding the Pier 70 initiative: “This initiative, like Proposition B, subjugates statewide interests and concerns to the local initiative process which Public Resources Code section 6009(d) expressly prohibits.”

But City Attorney's Office spokesman Gabriel Zitrin emphasized that the Lands Commission merely challenges the validity of the Pier 70 initiative in its complaint, rather than seeking injunctive relief from the court.

“They didn't ask the court to do anything about the Pier 70 initiative,” Zitrin said. “If they do, we intend to defend that, too.”

The City maintains that Prop. B is legal. On Tuesday, Herrera issued a statement promising to aggressively defend the measure.

“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,” Herrera's statement reads.

Former Mayor Art Agnos, a longtime proponent of Prop. B, said the measure is a first of its kind in the U.S. and the lawsuit to block it stems from “political manipulation” by Newsom, also a former San Francisco mayor.

“This is one of the most significant community-empowerment measures anywhere in the country,” Agnos said. “It says that the entire city will participate in the decision that must be made when you want to increase height limits on public land along the waterfront.”

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