Court rules Bayview Hunters Point redevelopment referendum invalid

Redevelopment plan continues in effect

From the office of San Francisco City Attorney Dennis Herrera

June 12, 2007

San Francisco Superior Court Judge Patrick J. Mahoney today rejected an effort by a local developer and attorneys affiliated with two conservative property rights organizations to compel City election officials to place on the ballot a previously disqualified referendum on the Bayview Hunters Point Redevelopment Plan. As a result of the ruling, the Redevelopment Plan continues in effect.

In the 14-page decision filed in San Francisco County Superior Court this morning, Judge Mahoney denied the plaintiffs' petition for a writ of mandate and other injunctive relief, opining: "There is abundant and consistent authority that a document 'attached' to an ordinance is a part of the text within the meaning of [California Elections Code] Section 9238. The rationale for this authority -- to ensure that voters receive essential information necessary to make an informed decision -- is applicable equally to a document that is incorporated by reference, particularly in this case where the meaning of the ordinance cannot be discerned without reference to documents incorporated by reference."

The court's ruling affirms a Sept. 19, 2006 legal opinion by City Attorney Dennis Herrera informing then-Clerk of the Board of Supervisors Gloria Young of her ministerial duty to reject the referendum petition as invalid. Herrera declared the petition invalid because signature gatherers violated requirements of California law that such referendum petitions must attach key documents incorporated by reference in the ordinance for consideration by prospective signers. The court agreed with Herrera's analysis, holding that the referendum organizers' omission of the 57-page redevelopment plan violated the law by depriving prospective signers of information they were entitled to consider before signing the petition. That information included critical aspects of the plan, such as the boundaries of the redevelopment project area; the scope of eminent domain allowed under the plan; land use controls; and affordable housing requirements and programs.

"The Court recognized that omission of the redevelopment plan by signature gatherers unlawfully deprived voters of their right to know what the ordinance sought to accomplish," Herrera said. "While I certainly understand the disappointment of activists who worked to take this referendum to the ballot, the fact is that California law is very clear, and California courts have been very consistent, that a referendum on a redevelopment plan such as this must include the plan itself."

The lawsuit was filed on Dec. 15, 2006 by an ad hoc association calling itself "Defend Bayview Hunters Point Committee," for which San Francisco developer Bryan O'Flynn has been a principal spokesman. Petitioners in the case were represented by attorneys affiliated with conservative public interest legal organizations, including Oregonians in Action, a Tigard, Ore.-based non-profit devoted to defending of private property rights and opposing environmental regulations.

"The flaw in Petitioner's presentation is the failure to address the requirement that a voter must be apprised of the fundamental terms of the ordinance that is the subject of the petition," Judge Mahoney wrote in his opinion. "What the cases teach is the need to 'reduce confusion as to the contents of referendum petitions and promote the full enlightenment of prospective signers of the substantive provisions of a challenged ordinance,'" citing language from a 1986 California Court of Appeal case entitled Chase v. Brooks.

City Attorney Herrera's Sept. 19, 2006 public opinion, which was issued as a result of inquiries from Mayor Gavin Newsom, Board of Supervisors President Aaron Peskin, District 10 Supervisor Sophie Maxwell, and the San Francisco Redevelopment Agency, is entitled "Validity of Referendum Petition Filed Against the Bayview Hunters Point Redevelopment Plan, Ordinance No. 113-06," September 19, 2006. The full opinion remains available online on the City Attorney's Web site at http://www.sfgov.org/cityattorney/.

The case is Defend Bayview Hunters Point Committee v. City and County of San Francisco et al, S.F. Superior Court No. CPF-06-506863. The City was represented in the May 7, 2007 hearing before Judge Mahoney by Chief Deputy City Attorney Therese M. Stewart and Deputy City Attorney Jonathan Givner.

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