State Lands Commission’s view that unelected Port Commission solely governs land use regulation on Port property defies California law, decades of decision-making
SAN FRANCISCO (Oct. 6, 2014)—City Attorney Dennis Herrera today filed a pre-trial brief aimed at winning a complete dismissal of a lawsuit by the California State Lands Commission to invalidate Proposition B, the voter-approved measure requiring electoral approval for height increases for new development on waterfront property managed by the Port of San Francisco. The legal challenge filed on July 15 contends that the city’s unelected Port Commission exercises sole land use regulatory authority over port property—and that voters, the Board of Supervisors and the Planning Commission are all powerless to make decisions about the height and size of new buildings on 7½ miles of waterfront property, from the Hyde Street Pier to India Basin. Herrera’s pleading, filed in San Francisco Superior Court today, argues that the State Lands Commission’s view defies California’s well-established constitutional right to initiative and ignores nearly five decades of land use regulation involving port property—ever since San Francisco voters themselves approved the transfer of state tidelands to local control in 1968.
Herrera’s pleading, filed in San Francisco Superior Court today, argues that the State Lands Commission’s view defies California’s well-established constitutional right to initiative and ignores nearly five decades of land use regulation involving port property — ever since San Francisco voters themselves approved the transfer of state tidelands to local control in 1968.
“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. “That is wrong. Yet even apart from the commission’s incorrect legal arguments, it’s hard to understand their rationale for upending a participatory process that has made San Francisco’s waterfront the envy of cities worldwide. For decades, land use decisions involving port property have included voters, elected leaders and appointed members of our Planning and Port Commissions. Together, we’ve worked cooperatively with the State Lands Commission, the San Francisco Bay Conservation and Development Commission, the Attorney General’s Office and other governmental agencies, conservation organizations and stakeholders to honor our obligations as trustees. The State Lands Commission’s complaint marks a radical departure in law and practice from land use decision-making in San Francisco and elsewhere, and it lacks a sufficient legal basis to proceed. With our demurrer today, we ask the court to dismiss this lawsuit, and we look forward to resuming our collaborative efforts with the State Lands Commission and others to hold this cherished waterfront property in trust for generations to come.”
San Francisco voters enacted Prop B, a measure requiring voter approval for waterfront development height increases, in the June 3, 2014 Consolidated Direct Primary Election by a margin of 59 percent (71,421 votes) to 41 percent (49,870 votes), according to the official results tabulated by the San Francisco Department of Elections.
In 1968, the California Legislature enacted the Burton Act, which authorized the state to transfer its tidelands and submerged lands to the City and County of San Francisco to hold in trust for public trust purposes. San Francisco voters approved the Burton Act transfer on Nov. 5, 1968 in an election whose official ballot argument in favor of the transfer emphasized that, “[f]or the first time since 1863, the people of San Francisco have it in their power to regain control of their port.”
Under terms of the transfer, the city created a new city agency, the Port Commission, with authority to manage the city’s waterfront for the citizens of California. On Nov. 4, 1990, San Francisco voters passed Proposition H, an initiative ordinance that prohibited hotels and other “unacceptable non-maritime land uses” on the waterfront, and also required city policymakers to prepare a comprehensive Waterfront Land Use Plan to define acceptable uses and policies for waterfront property under the Port of San Francisco’s control. Developed through a lengthy public planning process, and adopted by the Port Commission in 1997, the Waterfront Land Use Plan has allowed the Port Commission to work collaboratively with the San Francisco Planning Commission and Board of Supervisors, the San Francisco Bay Conservation and Development Commission, and the State Lands Commission to align the various land use plans and policies held by each entity. Port projects must comply not only with the Waterfront Plan, but also with adopted plans of the Planning Commission and BCDC. The port also consults regularly with the State Lands Commission on public trust issues in the planning process.
The California State Lands Commission is a unit of state government that exercises oversight over waterfront lands received from the United States when California became a state in 1850, including the San Francisco waterfront. The commission is also charged with holding approximately four million acres of the state’s submerged lands and coastline outside of San Francisco in trust for the benefit of all Californians, subject to public trust purposes for water related commerce, navigation, fisheries, recreation, open space and other recognized uses. The commission is currently comprised of three members: Lieutenant Governor Gavin Newsom; State Controller John Chiang; and the State Director of Finance Michael Cohen, a cabinet level officer appointed by Governor Edmund G. Brown Jr. The commission is represented in the legal action by the California Attorney General’s Office.
The case is: California State Lands Commission v. City and County of San Francisco, San Francisco Superior Court Case No. CGC-14-540531, July 15, 2014. Additional information on the San Francisco City Attorney’s Office is available at: https://www.sfcityattorney.org/.