The State of California has filed suit against The City of San Francisco, seeking to block enforcement of Proposition B and invalidate the highly contested Waterfront Height Limit Right to Vote Act which was approved by voters last month.

Championed by the California State Lands Commission, the lawsuit was filed in San Francisco Superior Court and challenges the right of local initiatives to assert control over state property, including the property along San Francisco’s waterfront which is managed by the City’s Port Commission but remains in the public trust.

City Attorney Dennis Herrera said that he intends to aggressively defend against the lawsuit and uphold “San Francisco’s deliberative decision-making process” on waterfront land.  “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.”

As approved, Proposition B requires voter approval for any development which would exceed the existing height limits on property controlled by the Port of San Francisco, including Pier 7o and the Giants’ proposed Mission Rock development in Mission Bay.

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Comments from “Plugged-In” Readers

  1. Posted by invented

    GO STATE! Good try Hererra.

  2. Posted by anon

    If you had any doubts whether elected officials represented the people or developers, now you know.

    Too funny. This will get thrown out of court quickly.

    • Posted by seriously

      This is a false dichotomy. It’s not only “people” or “developers”. Some people want development along the waterfront. Developers are also people too. To suggest that “people” are always virtuous and developers are always “greedy” is simplistic and wrong. The whole reason why this got started and why 8 Washington got shut down was from large donations by rich people who don’t want their bay views blocked.

      Personally, I put my trust in our elected officials and experienced and educated planning department. There is plenty of community input for all projects in SF (more than any other city). We don’t need another layer of bureaucracy preventing people from rehabilitating or developing our decrepit piers.

      • Posted by Serge

        Our experienced and educated planning dept also allowed for Fontana Towers to be built. And many other such eyesores throughout the city along the waterfront. Don’t forget that they allowed CA 480 to go up as well. You’ll forgive me for thinking that what they do is not necessarily in the best interest of the city or its citizens.

        • Posted by Fishchum

          “Our experienced and educated planning dept also allowed for Fontana Towers to be built.”

          – Uh, yeah, over 50 years ago.

          “And many other such eyesores throughout the city along the waterfront.”

          – Such as?

      • Posted by anon

        So strange how so many people think the interests of developers and those of everyone else are inherently at odds.
        Who do you think will end up using all of those things that are being developed? The people!

        I see it basically as a drawbridge attitude where some particular lucky individuals get the living situation they’re happy with, then pull up the drawbridge and say “screw you” to everyone else. It’s a big problem for politics in the Bay Area. Either that, or it’s simply sheep who believe everything they hear about all those evil greedy (insert scapegoat here) who are ruining all the good things in life.

    • Posted by norcal

      Fun fact:
      your house was built by a developer.

  3. Posted by Jake

    It seems a stretch to argue that the people who elected the mayor who appointed the port commissioners and elected the supervisors who confirmed those commissioners are prohibited from instructing the mayor, supervisors, and commissioners via an election.

    • Posted by soccermom

      Like when a town wants to ban federal taxes because the voters don’t like them, the federal government should pipe down.

      • Posted by Jake

        The CA Constitution, unlike the US Constitution, has provisions for citizen initiatives. So, analogies to federal law are difficult. For example, if the proposition to split CA into 6 states passes, the federal government can just ignore it.

        • Posted by soccermom

          Okay, so if San Franciscans vote in a ballot initiative that in San Francisco we can all drive 200 miles per hour in school zones, then we should live out our high speed dream?

        • Posted by JR "Bob" Dobbs

          Jake’s (very valid) point is that issues of federal-state supremacy are very different from issues of state-local supremacy for very complex reasons. The state-sanctioned initiative process is among them (courts generally draw no distinctions between laws passed by initiative or through typical legislative processes). So examples of invalid attempts to nullify federal law are inapposite.

          • Posted by soccermom

            Thanks Bob! So If San Franciscans vote in a ballot initiative that in San Francisco we can all drive 200 miles per hour in school zones, then we should live out our high speed dream? Or would the state highway patrol have something to say about that?

          • Posted by JR "Bob" Dobbs

            The state highway patrol would have no jurisdiction over local roads (even school zones), so no, that would not be a concern should such a measure pass.

            Lots of dumb laws get passed at all levels of government. Just because they are dumb does not mean they are preempted or otherwise unconstitutional.

          • Posted by JR "Bob" Dobbs

            “jurisdiction” was probably a sloppy shorthand — point is that CHIPS do not patrol city streets. Here is an excerpt from a case that illustrates the complexity of the question of whether “state laws trump local laws” — generally, the answer is “no” —

            Every California city may enact and enforce within its limits local ordinances not in conflict with general laws. (Cal. Const., art. XI, § 7.) Chartered cities, such as Los Angeles, are granted exclusive power to legislate their municipal affairs. (Cal. Const., art. XI, § 5; Government Code § 34101.) Under home rule, the state Legislature’s authority to intrude into matters of local concern is curtailed. The benefits of home rule are numerous, because cities are familiar with their own local problems and can often act more promptly to address problems than the state Legislature. Therefore, cities are only precluded from enacting laws on non-local matters if it is the intent of the Legislature to occupy the field to the exclusion of municipal regulation. (See Bishop v. City of San Jose (1969) 1 Cal. 3d 56, 61-62, 81 Cal. Rptr. 465, 460 P.2d 137.)

            Whether a city ordinance is valid therefore requires a determination of whether (1) the local regulation or ordinance is a ‘municipal affair,’ upon which the municipality has the exclusive authority to regulate, or (2) whether the subject is a matter of statewide concern such that state legislation preempts any municipal attempt at lawmaking. Because the California Constitution does not define ‘municipal affairs,’ it has become a question to be decided on the facts of each case, as the concept of a municipal affair changes over time as local issues become issues of statewide concern. (Bishop, supra, at p. 62, 81 Cal. Rptr. 465, 460 P.2d 137; Century Plaza Hotel (1970) 7 Cal. App. 3d 616, 620, 87 Cal. Rptr. 166.) Although the state Legislature may have attempted to deal with a particular field, this does not automatically ordain preemption. The Legislature may also express its intent to permit local legislation in the field, or the statutory scheme may recognize local regulations. (City of Dublin v. County of Alameda (1993) 14 Cal. App. 4th 264, 276, 17 Cal. Rptr. 2d 845.)

            Whether a particular matter is of ‘statewide concern’ is another way of stating that the matter is preempted and conflicting local legislation is prohibited. Fisher recognized a three-part test to infer a legislative intent to preempt conflicting municipal enactments only where (1) the subject matter has been so fully and completely covered by general law as to clearly indicate it has become exclusively a matter of state concern, (2) the subject matter has been partially covered by general law stated in such terms as to indicate clearly a matter of paramount state concern which will not tolerate further or additional local action, and (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance outweighs the possible benefit of the law to the municipality. (Fisher, supra, at p. 708, 209 Cal. Rptr. 682, 693 P.2d 261.)

          • Posted by soccermom

            Bob – Rules governing speed limits are laid out in the California Vehicle Code, not the San Francisco Code which is largely limited to administrative matters concerning parking etc. Even if Highway Patrol does not have jurisdiction over a school zone, an officer can witness an infraction and call it in to local enforcement. California vehicle code does pre-empt local law re: speed limits. Check your most recent speeding ticket.

            Similarly, as I understand it, despite best efforts to the contrary, no local ordinance has been able to trump the Ellis Act w/r/t certain rights retained by landlords (socketsite always comes back to rent control(!)) I think there are plenty of examples of state authority trumping local shenanigans. It will be interesting to see how it all plays out.

          • Posted by JR "Bob" Dobbs

            I agree – plenty of examples of state law preempting local shenanigans. And plenty of examples of dumb local laws prevailing over claims that state law preempted them. My only point was that these are very complicated legal issues and not as simple as saying “state law always wins.” That is not the case, and the statutes at issue here are complex and confusing. By contrast, issues of federal supremacy are much more clear (although still with many nuances). I can only guess how this particular challenge will play out, although at first blush the challenge appears to be quite weak as it seems to be based not on whether local entities can manage this area but how that local control is carried out.

          • Posted by Jack

            Not entirely accurate bob. Municipalities and municipal law exist entirely at the mercy of states, which can simply legislate them out of existence. Municipalities are in fact much weaker vis a vis states, than states are vis a vis the Feds.

          • Posted by JR "Bob" Dobbs

            Doesn’t matter. Once a municipality has been created, the California Constitution confers exclusive, nearly all-encompassing authority on the local jurisdiction. It is quite rare for a state law to preempt a local one (it happens, but it is a high bar to find a “conflict”).

            By contrast, the preemption clause in the U.S. Constitution is broad.

            So I suppose in theory the state could “de-charter” San Francisco, but that is never going to happen.

      • Posted by anon

        That’s a really good idea. Maybe we can get one of our Supervisors to sponsor this law banning Federal income tax…

  4. Posted by jsimms3

    I think the state is arguing that the people of just the City of SF don’t get a say in what happens with state-owned land. I would think it makes sense that the people of the State of CA get to vote on such land or at minimum elected legislators at the state level determine what happens.

  5. Posted by JR "Bob" Dobbs

    The complaint is on the court’s web site for anyone to read. Looks to be a pretty complex inter-play among a number of statutes. I have no idea how it will play out.

    [Editor's Note: A copy of the complaint has since been embeded above.]

  6. Posted by spencer

    thnk God for some sanity. The city can’t let a small minority of the superRich overtake planning decisions. No Wall on the Waterfront was funded by superwealthy people trying to protect their views, and 13% of voters approved this. thats all it takes when only 24% of residents go to the polls. the superwealthy can hijack the city and their influence can easily dupe people. Stopping these developments only hurt the middle class by restricting supply.

    • Posted by BigV

      +1 Spencer!

    • Posted by norcal

      But San Franciscans are the smartest people in the world! I asked them, they told me.

    • Posted by lurker

      Agreed, a million times over.

    • Posted by JR "Bob" Dobbs

      Yeah, except the process that Prop B (passed by a majority of those who voted) replaced was one in which literally just four individuals (commissioners) could make decisions that affect the entire city. Quite easy for a wealthy/influential person to dupe just four people. If the city can’t let this small minority of four people overtake planning decisions, then I’m not sure where we stand under this argument. Clearly a majority of voters, or even 13%, is harder to dupe than just four people, so on this point, anyway, the ballot route seems more sensible. All sorts of things – planning, zoning, height limits, etc. – restrict supply, so that argument doesn’t really get anyone anywhere (and perhaps the will of the people is simply to restrict supply, which certainly counts for something).

      Regardless, this lawsuit has nothing to do with how many (or few) people voted, or superwealthy influence. It is a straight matter of interpreting state statutes. To what extent, if any, did the state delegate authority to local entities over these lands. Nobody mentioned any statutory infirmities in the ballot materials (to my knowledge). That is not dispositive, of course, but it does suggest that this legal case is a bit novel and tenuous. Regardless, we will know soon as this will not require a lot of discovery and should reach a resolution pretty quickly. Personally, I couldn’t care less about the outcome. I’m not a huge fan of the initiative process in general.

      • Posted by James

        But those four people might have the time and interest to actually study the questions put before them, perhaps even hire expert analysts to advise them, rather than just invoking the dreaded Fontana Towers in a dilapidated part of the city they’ve never even been to.

        • Posted by Jake

          Yeah they might, but whatever time and interest they’ve put in, the results don’t inspire much confidence.

          At least we have recent evidence that Port Commissioner (smiling) Mel Murphy knows how to hire ‘experts’ to get results with dilapidated structures in San Francisco.

          FTR, there are 5 port commissioners. AFAIK, they adopt resolutions by simple majority. So, 3 dupes wins.

        • Posted by JR "Bob" Dobbs

          Ah yes, good correction – the Port Commission, not the Planning Commission, is the entity here. Far easier to buy/influence/dupe 3 “expert” (ha, look at their bios) Commissioners than a majority of the voters (sorry, those who don’t care enough not to vote simply don;t matter here). Not to say that there aren’t serious problems with the planning-by-ballot system — there are. But form the standpoint of ease of “duping,” the pre-Prop B process clearly allows for one who is well-off or well-connected to more easily dupe the decision-maker.

  7. Posted by Bob

    I would love to see a State of California vs Richard and Barbara Stewart

  8. Posted by eflat

    Yes the Stewarts who gave half a million dollars to Prop B aka “save our view”.Of course with the help of the Pestkin and his band of THD and back from the grave Agnos (failed mayor, why does anyone listen to him).
    Throw in the ballot manipulation by Jon Golinger who ran the Stewarts campaign. Although 8 Washington was hyped as a “Wall on the Waterfront”, buildings directly across the street from it are taller and it was on the west side, not the bayside of The Embarcadero. Yes, the Stewart’s view was saved, the private tennis & pool club got to stay and the rest of us got a parking lot and a block of unsightly fencing surrounding the pool and tennis club. Thank you Mr/Mrs Stewart, enjoy your view.

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