aggressive defense of prop b, development voting measure

City Attorney Dennis Herrera Statement

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ForImmediateRelease:July15,2014Contact:MattDorsey(415)554‐4662

Herrera vows aggressive defense of Prop B, waterfront development voting measure

San Francisco’s participatory waterfront land use decision‐making has included voters,

elected leaders and appointed commissioners for decades, City Attorney argues SANFRANCISCO(July15,2014)—TheCaliforniaStateLandsCommissiontodaysuedSanFranciscotoinvalidatePropositionB,aninitiativemeasurepassedintheJune3electionthatrequiresvoterapprovalforwaterfrontdevelopmentheightincreasesonpropertyownedorcontrolledbythePortofSanFrancisco.ThelegalchallengefiledinSanFranciscoSuperiorCourtcontendsthattheCalifornialegislaturespecificallyintendedtoprohibitlocalvotersfromexercisingauthorityoverbayandcoastalpublictrustlands,strictlylimitingmanagementofstatetidelandstodesignatedtrustees.Initslegalactiontoday,theStateLandsCommissionarguesthatthesoletrusteeresponsibleforsovereigntidelandsinSanFranciscoisthecity’sPortCommission.TheStateLandsCommissionisadditionallyseekingapreliminaryinjunctiontobarSanFranciscofromenforcingPropB.Inresponse,CityAttorneyDennisHerreraissuedthefollowingstatement:“Fordecades,landusedecisionsinvolvingSanFrancisco’swaterfronthaveincludedvoters,electedleadersandappointedmembersofourPlanningandPortCommissions.It’saparticipatoryprocessthatenactedacomprehensiveWaterfrontLandUsePlanin1990,developedashowplaceballparkfortheGiants,andcontinuestoprotectanurbanwaterfrontthatistheenvyofcitiesworldwide.SanFrancisco’sdeliberativedecision‐makingprocessonwaterfrontlandusehasneverbeensuccessfullychallenged,andIintendtodefenditaggressively.Withtoday’slawsuit,theStateLandsCommissionseemstohaveembracedthenotionthatanylocalinitiative—and,byextension,anylanduseregulationapprovedbyaBoardofSupervisorsorPlanningCommission—affectingportpropertyisbarredbystatelaw,andthereforeinvalid.Thatviewrepresentsaradicaldepartureinlawandpracticefromlandusedecision‐makinginSanFranciscoandelsewhere.WhiletheCitymustcertainlyhonoritsobligationsastrusteeinmanagingpublictrustproperty,itisalegallyand

CityAttorneyDennisHerrera—Page2practicallyuntenablepositiontoarguethatSanFrancisco’svotersandelectedofficialshavenodirectsayoverhowourcity’swaterfrontisdeveloped.”SanFranciscovotersenactedPropB,ameasurerequiringvoterapprovalforwaterfrontdevelopmentheightincreases,intheJune3,2014ConsolidatedDirectPrimaryElectionbyamarginof59percent(71,421votes)to41percent(49,870votes),accordingtotheofficialresultstabulatedbytheSanFranciscoDepartmentofElections.TheCaliforniaStateLandsCommissionisaunitofstategovernmentthatexercisesjurisdictionandmanagementcontrolovercertainpubliclandsreceivedfromtheUnitedStateswhenCaliforniabecameastatein1850.Thecommissionischargedinpartwithholdingapproximatelyfourmillionacresofthestate’ssubmergedlandsandcoastlineintrustforthebenefitofallCalifornians,subjecttopublictrustpurposesforwaterrelatedcommerce,navigation,fisheries,recreation,openspaceandotherrecognizeduses.Thecommissioniscurrentlycomprisedofthreemembers:LieutenantGovernorGavinNewsom;StateControllerJohnChiang;andtheStateDirectorofFinanceMichaelCohen,acabinetlevelofficerappointedbyGovernorEdmundG.BrownJr.ThecommissionisrepresentedinthelegalactionbytheCaliforniaAttorneyGeneral’sOffice.TheStateofCaliforniatransferredresponsibilityforSanFrancisco’swaterfronttothecityin1969throughstatelegislationfromtheprecedingyearknownastheBurtonAct.Undertermsofthetransfer,thecitycreatedaPortCommissionwithauthoritytomanagethecity’swaterfrontforthecitizensofCalifornia.OnNov.4,1990,SanFranciscovoterspassedPropositionH,aninitiativeordinancethatprohibitedhotelsandother“unacceptablenon‐maritimelanduses”onthewaterfront,andalsorequiredcitypolicymakerstoprepareacomprehensiveWaterfrontLandUsePlantodefineacceptableuses,policiesandlanduseinformationapplicabletowaterfrontpropertyunderPortofSanFrancisco’scontrol.Developedthroughalengthypublicplanningprocess,andadoptedbythePortCommissionin1997,theWaterfrontLandUsePlanhasallowedthePortCommissiontoworkcollaborativelywiththeSanFranciscoPlanningCommissionandBoardofSupervisors,theSanFranciscoBayConservationandDevelopmentCommission,andtheStateLandsCommissiontoalignthevariouslanduseplansandpoliciesheldbyeachentity.PortprojectsmustcomplynotonlywiththeWaterfrontPlan,butalsoadoptedplansofthePlanningCommissionandBCDC.ThePortalsoconsultswiththeStateLandsCommissiononpublictrustissuesintheplanningprocess.Initscivilcomplainttoday,attorneysfortheStateLandsCommissionarguethat2010amendmentsaddingSection6009totheCaliforniaPublicResourcesCoderepresentedasignificantchangeinstatelaw“forthespecificpurposeofprohibitinglocalinitiatives”fromexercisingauthorityoverbayandcoastalpublictrustlands.However,thecommission’slegalcontentionrunscountertoanuncodifiedsectionofthestatutemakingclearthatthe“additionofSection6009tothePublicResourcesCode...doesnotconstituteachangein,butisdeclaratoryof,existinglaw.”(Stats.2010,Ch.330§4.)Thecaseis:CaliforniaStateLandsCommissionv.CityandCountyofSanFrancisco,SanFranciscoSuperiorCourtCaseNo.CGC‐14‐540531,July15,2014.AdditionalinformationontheSanFranciscoCityAttorney’sOfficeisavailableat:http://www.sfcityattorney.org/.

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/ KAMALA D, lIAHIUs Attorney (knl'l'u/ oj' Cn/if'omiu

2 CHRISTIANA 'J'lmw:MANN Supervising DepulY Attorney (1cllcmJ

3 JOSEPII C, RUSCONI Deputy Attorney Ucr)(.~rn/

4 State Bur No. ns 1 4 15 15 Clay Street, 20th Floor

5 P.O. Box 70550 Oakland, CA 946 J 2~0550

6 Tclcphom:: (5 10) 622-2150 Fax: (5/0) 622-2270

7 E~rnaiJ: [email protected] Allorneys/hr Petilioner and PlainliU'

8 Cal(j()rnia Slate L(mds Commission

9 rExempt from fees pursuant to Government Code section 61 OJ)

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SUPERIOR COURT OF '1'1-11\ STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

CALIFORNIA STATE LANDS Case No, C G C - 1 4 .. 5 4 0 5 3 1 16 COMMISSION,

I)Ji~TITION FOR PEJUCMPTORY WRIT Petitioner and Plaintiff~ OF MANDATJi: AND COMPLAINT FOR

DIGCLARATORY AND IN.JUNCTIVE 17

18 v. RELIEF

19 Action Filed: CITY AND COUNTY OF SAN

20 FRANCISCO, DOES ONE THROUGH FIFTY,

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Respondents and Defendants.

Petition for Peremptory Writ of Mandate; Complaint for Declaratory and Injunctive Relief

PetitionerlPlaintiff California State Lands Commission ("Commission") petitions this Court

2 for a peremptory writ of mandate pursuant to Code of Civil Procedure sections 1085 and 1086

3 and files this complaint for declaratory relief against the respondent/defendant City and County of

4 San Francisco ("City"), seeking an order and declaration from this court that the Waterfront

5 Height Limit Right to Vote Act, Section 61.5.1 of the San Francisco Administrative Code

6 ("Proposition B"), enacted by the City and County of San Francisco electorate as Proposition B

7 on June 3, 2014, is invalid. The Commission also files this action for injunctive relief seeking an

8 order restraining the City and all of its agencies, officers, agents, employees, and all persons

9 acting in concert with them from enforcing Proposition B's provisions.

10 By this petition and complaint, the Commission alleges as follows:

11 INTRODUCTION

12 On June 3, 2014, the City and County of San Francisco electorate enacted Proposition Bas

13 a local initiative. A copy of Proposition B is attached as Exhibit A and incorporated herein by

14 this reference. Proposition B mandates a vote of the City and County of San Francisco electorate

15 for any future increase in the height limits applicable as of January 1,2014, to the tide and

16 submerged lands granted by the State of California ("California") to the City pursuant to the

17 Burton Act, Chapter 1333 of the Statues of 1968, as amended ("Burton Act").

18 California obtained the lands subject to the Burton Act upon its admission to the United

19 States on September 9, 1850, as an incident of its sovereignty. They are held subject to the

20 common law public trust for commerce, navigation, fisheries, and other recognized trust uses

21 ("public trust"). These lands are now held by City subject to the public trust and subject to the

22 terms and conditions in the Burton Act. These lands must be managed by the San Francisco Port

23 Commission ("Port") for the benefit of all of the people of California and not for the benefit of

24 the citizens of the City. (Pub. Resources Code, § 6009, subd. (d).)

25 During the construction of San Francisco Harbor, much of the lands later granted to the

26 City by the Burton Act were filled and reclaimed and cut off from access to San Francisco Bay.

27 A large portion of these filled lands are now not suitable for port purposes but available for other

28 development consistent with the Common law public trust.

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1 California, acting by and through the Commission, retains oversight authority over the

2 lands granted to the City in the Burton Act. (Pub. Resources Code, § 6009, subd. (c).) The

3 Legislature has specifically directed that the right to initiative does not apply to lands granted by

4 the Legislature to municipalities such as the lands granted by the Burton Act to the City. (Pub.

5 Resources Code, § 6009, subd. (d).) Further, in the Burton Act, California delegated specifically

6 to the Port, and not to the citizens of the City, exclusive planning and management authority over

7 the lands granted-lands that are of statewide importance and concern. The Commission and

8 Port have a long history of collaboration in planning for the Port's use and financing of the lands

9 granted by the Burton Act. The California Legislature, in its role as the ultimate trustee of the

10 lands granted by the Burton Act, has frequently amended the Burton Act and enacted other

11 statutes affecting the lands granted by the Burton Act, including recent legislation authorizing a

12 multi-use arena on those lands.

13 California may, as it has done here, specifically preclude the local right to initiative by

14 statute. (Pub. Resources Code, § 6009, subd. (d).) In addition, pursuant to the exclusive

15 delegation doctrine, the Legislature may, again as it has done here, preclude the right to local

16 initiative in areas of statewide concern. (Com. Of Seven Thousand v. Superior Court (1988) 45

17 Ca1.3d 491,511-512.) Proposition B is therefore invalid and beyond the power of the City and

18 County of San Francisco electorate to enact. The Court should issue an order and peremptory

19 writ of mandate declaring that Proposition B is invalid and unenforceable and directing the City

20 and all of its agencies, officers, agents, employees, and all persons acting in concert with them not

21 to take any action to enforce the provisions of Proposition B. The Court should also issue

22 preliminary and pennanent injunctions prohibiting City and all of its agencies, officers, agents,

23 employees, and all persons acting in concert with them from enforcing any and all of the

24 provisions of Proposition B.

25 PARTIES

26 1. Petitioner/Complainant Commission is a statewide agency established by the

27 Legislature pursuant to the State Lands Act of 1938, Public Resources Code section 6001, et seq.,

28 to manage lands owned by California. The Commission is composed of the Lieutenant Governor,

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1 the State Controller, and the State Director of Finance. (Pub. Resources Code, § 6101.) The

2 Commission's main office is located at 100 Howe, Avenue, Suite 100 South, Sacramento,

3 California 95825.

4 2. RespondentlDefendant City is a municipal government that operates under the

5 authority of the San Francisco City and County Charter. The City, acting through its agencies,

6 officers, and employees is responsible for the enforcement of all City ordinances including

7 Proposition B.

8 3. RespondentlDefendant Does One through Fifty are fictitiously named respondents

9 and defendants whose true names and capacities are unknown to the Commission. If and when

10 their true names and capacities are known, the Commission will amend this petition and

11 complaint to assert them.

12 JURISDICTION AND VENUE

13 4. Commission brings this action as a petition for writ of mandate pursuant to Code of

14 Civil procedure sections 1085 and 1086. Sections 1085 and 1086 provide that the Commission

15 may seek a writ of mandate or prohibition to restrain the City from taking official acts to

16 implement an invalid initiative. Commission also brings this action as a complaint for declaratory

17 and injunctive relief pursuant to Code of Civil Procedure section 1060 et seq. which provides that

18 in cases of actual controversy relating to the legal rights and duties of the respective parties, any

19 person may bring an action in Superior Court for a declaration of their rights. A complaint for

20 declaratory relief is also a proper method to challenge an illegally enacted ordinance. This action

21 is properly filed in the City and County of San Francisco pursuant to Code of Civil Procedure

22 sections 394 and 395.

23 FACTUAL BACKGROUND

24 5. Upon admission to the United States, and as an incident of its sovereignty, California

25 received title to the tidelands, submerged lands, and beds of navigable lakes and rivers within its

26 borders to be held subject to the public trust. (Borax, Ltd. v. Los Angeles (1935) 296 U.S. 10, 15-

27 16; People v. California Fish Co. (1913) 166 Cal. 576, 584.) With its roots in Roman Law, the

28 public trust doctrine establishes that California holds its "sovereign lands" in trust for public

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1 purposes, traditionally delineated in tenns of commerce, navigation and fisheries. However,

2 more recently the courts have found the trust to be broader, including the right to hunt, bathe or

3 swim, and the right to preserve these lands in their natural state. (City of Berkeley v. Superior

4 Court (1980 ) 26 Cal.3d 515, 521.)

5 6. California's power to control, regulate and use its navigable waterways and the lands

6 lying beneath them, when acting within the tenns of the public trust, is absolute. (Pub. Resources

7 Code, § 6009, subd. (b); Marks v. Whitney (1971) 6 Ca1.3d 251,262 citing California Fish, 166

8 Cal. at 597.) The act offilling and reclaiming sovereign lands does not alter their fundamental

9 character as sovereign lands. (Marks, supra, at 261.)

10 7. In 1968, the Legislature enacted the Burton Act authorizing a grant of California's

11 sovereign lands to the Cityl. (Stats. 1968, ch. 1333, §§ 3, 10.) The lands granted to the City, and

12 the revenues the Port generates from that land, are to be used only for "matters of statewide as

13 distinguished from local" interest and benefit. (Stats 1968, ch. 1333, § 5; Mallon, 44 Ca1.2d at

14 209.) The Legislature has repeatedly found that matters affecting the lands granted are of

15 "statewide importance." (Stats. 2011, ch. 477, § 10.; Stats 2001, ch. 489, § 10; Stats. 1991, ch.

16 1143, § 11; Stats. 1987, ch. 310, § 5(c).) Further, the Legislature has declared that ordinances or

17 other local laws inconsistent with the tenns of special statutes relating to the lands granted in the

18 Burton Act shall not be applicable. (Stats. 2011, ch. 477, § 10; Stats. 2007, ch. 660; § 13; Stats.

19 2001, ch. 489, § 10.) The lands subject to Proposition B are tidelands and submerged lands that

20 the Legislature granted, subject to the public trust, to the City acting specifically by and through

21 the Port. (Stats. 1968, ch. 1333, §§ 1, 10.) These lands currently include large areas of filled

22 fonner tide and submerged lands that are no longer used for port purposes but that can be

23 developed.

24 8. The grant to the City of the lands subject to the Burton Act did not end California's

25 supervision and control of those lands. California remains the ultimate trustee of the property.

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I The transfer was only effective upon acceptance by the City of the Burton Act's transfer conditions and was memorialized in a Transfer Agreement.

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(fllinois Central R.R. Co. v. Illinois (1892) 146 U.S. 387,453-454.) The Legislature retains the

2 power to require that local government grantee spend the moneys generated from public trust

3 lands only for pubic trust purposes, and the Legislature can even revoke, alter or amend the

4 granting statute. (Pub. Resources Code, § 6009, subd. (c); People ex rei S.F. Bay etc. Com.

5 (1968) 69 Ca1.2d 533, 549; Mallon v. City of Long Beach (1955) 44 Ca1.2d 199, 208-209; City of

6 Coronado v. San Diego Unified Port District (1964) 227 Cal.App.2d. 455,473-474.)

7 9. The effect of a legislative grant is, therefore, to create a trust in which the grantee

8 City is the trustee, and California the settlor-beneficiary. The consequence of this relationship is

9 that the proper use of tidelands is a matter of statewide importance, subject to judicial regulation

10 to prevent, or remedy, a breach of the terms of the trust or other applicable statutory provision.

11 (Mallon, 44 Cal.2d at 209.) California, as settlor-beneficiary, acting through proper officers and

12 agencies (Le., the Commission), can sue a local government trustee to compel performance of

13 specific grant/trust provisions, to enjoin a breach thereof, or to compel a grantee to redress a

14 breach. (See e.g., State a/California ex rei. State Lands Com. v. County of Orange (1982) 134

15 Cal.App.3d 20.)

16 10. At the time of the grant contained in the Burton Act, several Port facilities were in

17 disrepair or virtually unusable for maritime purposes due to poor physical condition. Many of the

18 Port's piers were constructed in the first three decades of the twentieth century, when ferry

19 service, break-bulk shipping, and shipbuilding flourished at Port facilities. However, with the

20 construction of the Golden Gate and San Francisco/Oakland Bay Bridges and international trends

21 towards containerized shipping and away from domestic shipbuilding operations, both revenue-

22 generating demand for Port facilities and associated funds for repair and upkeep of these facilities

23 have greatly declined, a trend continuing to the present.

24 11. The Port is an autonomous agency that receives no financial support from the City's

25 General Fund to support its activities. Instead, it is reliant upon revenues generated by operations

26 existing on the lands granted by the Burton Act. It must use these revenues to fund all expenses

27 associated with its duties and obligations pursuant to the Burton Act including providing facilities

28 for maritime use, creating and maintaining public access and open space improvements, and

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1 maintaining and rehabilitating its piers and other facilities. These now include more than twenty

2 piers and associated structures which have been listed on the National Register of Historic Places

3 and require costly and specialized rehabilitation and maintenance.

4 12. The Port therefore has the dual, and often competing, obligations of providing the

5 public with usable piers, ship terminals, open space, parks, and access to the Bay, while at the

6 same time stemming declining revenue from these same resources to pay for its obligations under

7 the Burton Act. As a result, the Port's Ten-Year Capitol Plan estimates that the cost to maintain

8 its public trust lands and facilities in a state of good repair is an estimated $1.59 billion dollars (a

9 figure that does not include seismic or seawall constructioni.

10 13. As identified in the Capitol Plan, development of the Port's underutilized lands plays

11 a pivotal role in providing projected financial resources to meet the Port's obligations as trustee

12 under the Burton Act. At least 40 percent of the Port's future funding for its obligation under the

13 Burton Act would be provided by development opportunities on Port lands. (Capitol Plan, p. 18.)

14 The Port works in cooperation with the Legislature, the Commission, and the San Francisco Bay

15 Conservation and Development Commission ("BCDC") to identifY potential opportunities that

16 advance public trust and Burton Act purposes, both directly by maintaining, preserving, and

17 creating new trust opportunities on the waterfront and indirectly by providing funding for such

18 activities on the waterfront. It also involves the community heavily in the planning process

19 through public hearings and study sessions and through citizens' advisory committees. Some

20 examples of the recent projects include AT&T Park, the Ferry Building, and the Exploratorium.

21 Like these developments, future development of waterfront lands requires flexibility in planning,

22 including potential increases in height limitations where appropriate.

23 14. The Legislature has delegated to the Commission California's retained trustee and

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supervisorial rights in lands granted to municipalities, including those granted to the City. (Pub.

Resources. Code, § 6301; § 6009, subd. (c).) In addition to the Commission's supervisorial rights

2 Port Ten-Year Capitol Plan FY 2015-2024 (2014) ("Capital Plan"), p. 2. The Capital Plan includes only $500,000 to begin studies of the Port's response to sea level rise and the condition of the aging Embarcadero seawall. The plan notes that state policymakers, including the Commission, have increasing concerns on the anticipated effects of sea level rise.

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Petition for Peremptory Writ of Mandate; Complaint fOT Declaratory and Injunctive Relief

1 pursuant to sections 6301 and 6009(c), there are specific legislative enactments that apply to the

2 lands granted to the City acting through the Port. For example, the Commission must approve

3 Port expenditures for historic structures on the granted lands, must approve proposed Port leases

4 for non-trust purposes, and must approve any proposed sale of certain property that is no longer

5 necessary for public trust uses. (Stats. 2007, ch. 660, §§ 4(b)(I), 4(b)(5)(c)(l); Stats. 1987, ch.

6 310, §§ 3, 5.)

7 15. Proposition B was enacted by the City and County of San Francisco electorate as a

8 local initiative on June 3, 2014. The Board of Supervisors of the City declared the results of the

9 June 3, 2014, election on June 24, 2014. Pursuant to Election Code sections 9122 and 9217,

10 Proposition B became effective ten days thereafter on July 4,2014. Proposition B vests the local

11 City electorate with absolute control over increases in height limits on Port waterfront lands.

12 Proposition B provides that no City agency or officer may ''take, or permit to be taken, any action

13 to permit development located in whole or in part on the waterfront to exceed at any point the

14 building and structure height limits in effect as of January 1, 2014, ... unless a height limit

15 increase for the development has been approved by a vote of the electors of the City and County

16 of San Francisco." (Exhibit A, Proposition B, subd. (a).) Proposition B applies to "lands

17 transferred to the City and County of San Francisco pursuant to Chapter 1333 of the Statutes of

18 1868, as well as any other property which is owned or under the control of the Port Commission

19 of San Francisco as of January 1,2014, or acquired thereafter." (Exhibit A, Proposition B, subd.

20 (c).) These lands are California's sovereign lands that have been granted to the City. The lands

21 targeted by Proposition B run along the Embarcadero waterfront and miles south of AT&T Park.

22 16. Proposition B is invalid because it specifically targets state-owned tide and

23 submerged lands over which the Legislature has expressly precluded the right of local initiative.

24 Public Resources Code Section 6009(d) requires the Port and all other grantees of California's

25 sovereign lands, to "manage the state's tidelands and submerged lands consistent with the terms

26 and obligations of their grants and the public trust, without subjugation of statewide interests,

27 concerns, or benefits to the inclusion oflocal municipal affairs, initiatives, or excises." (emphasis

28 added.) The Legislature adopted Public Resources Code section 6009 in 2010 for the specific

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1 purpose of prohibiting local initiatives from interfering with the planning, management, and

2 operations of California's sovereign lands that had been granted by the Legislature to

3 municipalities.

4 17. As a separate ground from that pled in paragraph 16, Proposition B is invalid under

5 the exclusive delegation doctrine. Under the exclusive delegation doctrine, the Legislature may

6 preclude the right of initiative at the local level in matters of state-wide concern by delegating

7 responsibility over a particular issue to a specific entity, in this case to the Port. (Com. Of Seven

8 Thousand v. Superior Court (1988) 45 Ca1.3d 491, 511-512.) The Burton Act granted authority

9 to the "City and County of San Francisco, through a Harbor Commission of the City and County

10 of San Francisco, to operate, maintain, manage, regulate, improve and control the harbor of San

11 Francisco .... " (Stats. 1968, ch. 1333, § 3; emphasis added.) In response to the Legislative

12 directive that the lands granted be administered through a "Harbor Commission", the City

13 established the San Francisco Port Commission as the agency with day-to-day management

14 authority over the lands granted in the Burton Act.

15 18. The Legislature has repeatedly stated that the administration of the San Francisco

16 waterfront is a matter of statewide interest and benefit. It has also delegated administration of the

17 lands granted by the Burton Act exclusively to the Port, rather than to the City and County of San

18 Francisco electorate.

19 19. Such a delegation specifically to the Port, and not to the City (or to the citizens or

20 electorate), furthers the state-wide purposes for which the lands were grated and furthers

21 California's supervisory role over those lands. Under the Burton Act and subsequent legislation,

22 the Legislature purposefully established a collaborative process between State agencies, including

23 the Commission and BCDC, and the Port which provides a responsible delegee agency with

24 whom the Commission can work in implementing its oversight role concerning land uses that

25 maintain, preserve, and enhance public trust and Burton Act purposes, including generation of

26 sufficient revenue to help fund those purposes. Proposition B strips the Port of its exclusive land

27 use authority over the lands granted by the Burton Act, thwarting the collaborative relationship

28 and process envisioned by the Legislature.

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1 20. Providing City and County of San Francisco voters a right of approval over every

2 height limit increase would conflict with California's interest and purposes as embodied in the

3 Burton Act. At a minimum, it interferes with the Port's Capital Plan~rafted with the

4 cooperation of California-for fulfilling the Port's statewide trustee obligations to further public

5 trust and Burton Act purposes on the lands granted. The local electorate could permanently block

6 such projects by rejecting proposals at the ballot, thereby eliminating an essential funding source

7 for the Port to undertake pier repairs and other essential functions. Either way, state-wide

8 interests are not served.

9 21. In anticipation of the enactment of Proposition B, on May 13,2014, Susan Eslick,

10 Proponent, and Kate Sofis, Proponent, submitted the text of the proposed "Union Iron Works

11 Historic District Housing, Waterfront Park, Jobs and Preservation Initiative" to Mr. John Arntz,

12 Director of the San Francisco Department of Elections. This initiative, among other things, seeks

13 to raise the current 40 foot height limit to 90 feet over a portion of the lands granted by California

14 to the City in the Burton Act. This initiative, like Proposition B, subjugates statewide interests

15 and concerns to the local initiative process which Public Resources Code section 6009( d)

16 expressly prohibits. This initiative, like Proposition B, purports to exercise the right of local

17 initiative over California's sovereign lands that the Legislature has delegated administrative

18 authority exclusively to the Port and not to the City or to the voters generally.

19 FIRST CAUSE OF ACTION

20 (Violation of Public Resources Code section 6009 and the Exclusive Delegation Doctrine)

21 22. The Commission hereby realleges and incorporates paragraphs 1 through 21 above as

22 if fully set forth herein.

23 23. Proposition B violates section 6009 of the Public Resources Code because it

24 subjugates statewide interests and concerns to the local initiative process which section 6009

25 expressly prohibits.

26 24. Proposition B violates the exclusive delegation doctrine because it grants the City

27 electorate the right of initiative over California's sovereign lands that the Legislature has

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1 delegated administrative authority exclusively to the Port and not to the City or to the voters

2 generally.

3 SECOND CAUSE OF ACTION

4 (Writ of Mandate-Code of Civil Procedure sections 1085 and 1086)



7 26. Proposition B violates state law because it conflicts with state law over a matter of

8 statewide concern that has been delegated to the Port and not to the City electorate.

9 27. Because Proposition B is invalid, City has a ministerial duty not to enforce its

10 provisions.

11 28. The Commission does not have a have plain, speedy, and adequate remedy in the

12 ordinary course of law because if the Court does not act, the City will enforce the terms of

13 Proposition B and the Union Iron Works Historic District Housing, Waterfront Park, Jobs and

14 Preservation Initiative and other like initiatives will be placed before the City and County of San

15 Francisco electorate. The Burton Act has delegated management of the lands granted therein to

16 the Port and the local right of initiative does not apply to dictate uses on, or to further delegate

17 management responsibilities and control over, California's sovereign lands.

18 THIRD CAUSE OF ACTION

19 (Declaratory Relief)

20 29. The Commission hereby real leges and incorporates paragraphs 1 through 28 above as


22 30. Proposition B is currently in full force and effect and is enforced by City.

23 31. There is an actual controversy relating to the respective legal rights and duties of the

24 City and the Commission. The Commission contends that Proposition B is invalid and

25 unenforceable both on its face and as construed by City. The Commission desires a declaration as

26 to the validity of Proposition B. Unless declaratory relief is granted, City will continue to enforce

27 Proposition B and will continue to place initiates of the ballot that would affect the sovereign

28 lands granted by California to City in the Burton Act in contravention oflaw. California asks this

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1 Court to make a declaration that Proposition B is invalid and that City must cease its enforcement

2 of Proposition B.

3 FOURTH CAUSE OF ACTION

4 (Injunctive Relief)



7 33. City's wrongful conduct in enforcing Proposition B, unless and until enjoined and

8 restrained by order of this court, will cause great and irreparable injury to the Commission. The

9 Legislature has specifically mandated that the Port manage the lands granted by the Burton Act.

lOIn the conduct of that management, the Port, Commission, and other California agencies such as

11 BCDC, meet, confer, and cooperate in the resolution of the many issues facing the Port regarding

12 the use and financing of the lands granted to the Port by the Burton Act. Proposition B illegally

13 eliminates that cooperation insofar as needed changes to the existing height limits applicable to

14 the lands granted by the Burton Act. Proposition B usurps the Commission's statutory mandated

15 consultation and oversight roles and bestows them on the City and County of San Francisco

16 electorate.

17 34. The Commission has no adequate remedy at law for the injuries currently suffered by

18 Commission from the enactment of Proposition B. California's sovereign lands are lands of

19 unique character held subject to the public trust. California remains the ultimate trustee of these

20 lands. No amount of money can compensate California for its injuries suffered by the usurpation,

21 through the enactment of Proposition B by the electorate of the City and County of San Francisco,

22 of California's role as trustee of its sovereign lands granted by the Burton Act.

23 WHEREFORE, Commission prays for judgment as follows:

24 1. That the court issue a peremptory writ of mandate declaring Proposition B invalid and

25 ordering the City and all of its agencies, officers, agents, employees, and all persons acting in

26 concert with them cease any and all enforcement of Proposition B;

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1 2. For a declaration from this court that Proposition B is invalid and a declaration that

2 the City and all of its agencies, officers, agents, employees, and all persons acting in concert with

3 them cease any and all enforcement of Proposition B;

4 3. For preliminary and permanent injunctions enjoining City and all of its agencies,

5 officers, agents, employees, and all persons acting in concert with them from any and all

6 enforcement of Proposition B;

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For costs of suit incurred in this action; and

Such other and further relief as the court finds just and proper.

9 Dated: July 14,2014

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Respectfully Submitted,

KAMALA D. HARRIS Attorney General of California CHRISTIANA TIEDEMANN Supervising Deputy Attorney General

JOSEPH C. RUSCONI 15 Deputy Attorney General

Attorneys for Petitioner and Plaintiff 16 California State Lands Commission

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9040I712.doc

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EXHIBIT A

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WATERFRONT HEIGHT LIMIT RIGHT TO VOTE ACT

3 Be it ordained by the People ofthe City and County of San Francisco:

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SECTION 1. Title

7 This measure shall be known and may be cited as the "Waterfront Height Limit Right To

8 Vote Act"

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SECTION 2. FiDdings aDd DeclaratioDs

12 The People of the City and County of San Francisco declare their fmdings and purposes

13 in enacting this Initiative to be as follows:

14 Whereas, the San Francisco waterfront is an irreplaceable public resource of the highest

15 value;

16 Whereas, San Francisco holds the waterfront in trust for the People of California;

17 Whereas, it is in the interest of San Francisco to preserve a unique and vibrant vital

18 waterfront with adequate public views of, and access to, the City and San Francisco Bay;

19 Whereas reasonable building height limits on the San Francisco waterfront have been

20 instrumental in preventing the historic waterfront from becoming blocked and waJled off by luxury

21 high-rises and tall private buildings as has happened on many waterfronts around the country;

22 Therefore the people of San Francisco declare that it is the policy of the City and County of

23 San Francisco that:

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1213012013

1 The existing maximum building height limits on the San Francisco waterfront shall be

2 preserved and shall not be increased unless a height limit increase is approved by San Francisco

3 voters.

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SECTION 3. Waterfront Height Limit Right To Vote Requirement

Section 61.5.1 is added to the San Francisco Administrative Code as follows:

(a)

(b)

(c)

No city agency or officer may take, or pennit to be taken, any action to pemlit

development located in whole or in part on the waterfront to exceed at any point the

building and structure height limits in effect as of January 1, 2014, which are set

forth in San Francisco Planning Code Article 2.5, unless a height limit increase for

the development has been approved by a vote of the electors of the City and County

of San Francisco.

Any ballot measure placed before the electors to approve increased height limits for

development on the waterfront must specify both the existing and proposed height

limits in the ballot question. The failure to specify both the existing and proposed

height limits in the ballot question shall render such an increase in height limits void.

For the purposes of this Section, the term ''waterfront'' means land transferred to the

City and County of San Francisco pursuant to Chapter 1333 of the Statutes of 1968,

as well as any other property which is owned by or under the control of the Port

Commission of San Francisco as of January 1,2014 or acquired thereafter.

Page 2 1213012013

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SECTION 4. Effective Date

3 In accordance with the provisions of California Elections Code section 9217, if a majority of

4 the voters vote in favor of the Initiative, the Initiative shall go into effect 10 days after the vote is

5 declared by the Board of Supervisors.

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SECTION 5. Severability

9 If any provision of this Initiative or any application thereof to any person or circumstance is

10 held invalid, such invalidity shall not affect any provision or application of this Initiative that can be

11 given effect without the invalid provision or application. To this end, the provisions of this Initiative

12 are severable.

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NOTICE OF INTENT TO CIRCULATE PElTI'ION (CAEC § 9202)

NOTICE OF INfENT TO CIRCULATE PETITION

Notice is hereby given by the persons whose names appear hereon of their intention to circulate the petition within the City and County of San Francisco for the purpose of:

ensuring voters have a voice in deciding the future of San Francisco's waterfront.

I decline to submit the optional statement of the reasons of the proposed action as contemplated in the petition.

REBECCA EV ANS 12/30/13

NAME OF PROPONENT PROPONENT'S SIGNATURE DATE

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aggressive defense of prop b, development voting measure

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