SF seeks to have lawsuit challenging Prop B dismissed

City Attorney Dennis Herrera has filed a pre-trial brief stating that a lawsuit challenging the validity of Prop. B has no merit.

City Attorney Dennis Herrera is asking a judge to throw out a lawsuit challenging the validity of Proposition B, a measure passed in June that forces waterfront height-limit increases in San Francisco to go before voters.

The pre-trial brief, filed Monday by Herrera in San Francisco Superior Court, states that land-use decisions involving Port of San Francisco property have included voters for decades and therefore the lawsuit questioning the validity of Prop. B has no merit.

The lawsuit by the California State Lands Commission against The City was filed in July, and challenges whether voters can weigh in on development projects that exceed building height limits along a 7.5-mile span of the waterfront.

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 state Legislature retains ultimate authority of the property, per the Burton Act of 1968.

But Herrera contends that the Burton Act actually calls for local control of the waterfront because the state granted authority of San Francisco's “tidelands and submerged lands” to The City through a harbor commission.

“After half a century of successful cooperation on San Francisco's waterfront, the California State Lands Commission has decided that San Francisco's waterfront planning process is illegal and that voters have no say about what can be built next to the Bay,” Herrera said in a statement. “That is wrong.”

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 he was not surprised by Herrera's attempt to have the lawsuit by the Lands Commission dismissed.

“The City is forced to oppose it, whatever its interests really are,” Colen said.

The Nov. 4 election will mark the first time Prop. B is exercised, when voters will be asked 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.

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