Update on the Parkmerced Case

Late this spring, the Court of Appeals heard oral arguments regarding the case of Parkmerced vs. the City and County of San Francisco.  Attorney Stuart Flashman represented San Francisco Tomorrow and Parkmerced Action Coalition, basing his argument on the first article of the Planning Code, known as Prop M because of its passage by the voters in their efforts to curb development that does not serve and conserve the qualities of a neighborhood.  Flashman argued that the will of voters trumps the authority of the Board of Supervisors (BOS) and the Planning Commission, regarding development policy.  Flashman stated that Proposition M building restriction would apply to new construction and demolition of low-rise affordable housing at Parkmerced.

Deputy City Attorney Brian Crossman represented the City and County of San Francisco as well as the projectʼs sponsor, Parkmerced Investment Partners.The judges were Justice J. Anthony Kilne, Associate Justice James Richman and by special assignment, Alameda County Superior Court Judge Steven Brick.

The most convincing argument made by Stuart Flashman referenced Proposition M, passed by the voters in 1986, effectively limiting the amount of development in San Francisco. Flashman argued that ParkMerced should be recognized as an historic resource which should receive protection under the historic preservation ordinance of the San Francisco Planning Code.  Stuart Flashman called Parkmerced the largest affordable housing development in San Francisco and that both neighborhood character and housing affordability are protected by proposition M.  Just as Telegraph Hill, North Beach, Coit Tower, Chinatown and San Francisco’s Victorian housing near Alamo Square need protection, so, too, is Parkmerced a unique place that needs protection.  Parkmerced is considered a shining example of the modern design movement.  Designed by Thomas Church, the “father” of landscape architecture in the Bay Area, Parkmerced is one of Churchʼs largest projects and easily accessible to the public.  A number of organizations involved with the preservation of historic places have endorsed the protection of Parkmerced.

The City Attorney disagreed, stating that while Prop M represents the will of the people it has no greater standing than laws originating with the BOS.  This view was challenged by Justice Cline, and yet he conceded that perhaps Proposition M might not be able to meet all of its objectives because several priorities could be in conflict with each other.  He asked attorney Flashman to comment and Flashman responded that the voters intended that if a project couldnʼt meet all the policies, it should be turned down, even if the project was essential to meet one of the policies.  He said the voters intended maximum possible compliance, not merely that the project “generally comply,” as the City argued.

City Attorney Brian Crossman stated that housing development in the city would be seriously hampered if San Francisco accepted the position set forth by Stuart Flashman.  In agreement with The City Attorney, Judge Kline volunteered the belief that “chaos” would occur if Proposition M was strictly adhered to. Judge Brick volunteered his fear that the City would  be frozen in amber with the strict interpretation of Prop M.  Flashman countered that a strict interpretation of Prop M would not stop other development, if the public was in agreement with that project.

Flashman also noted that the FAR (floor to area ratio) and the I-27 and I-2 tables of the Housing element provide little guidance from the Planning Department regarding development guidelines. Suggestions for reasonable or recommended density levels, population density, building intensity, transportation effectiveness and other requirements for successful development are not included or inadequately treated in the Housing  Element.
The chief judge, Tony Kline, noted that the case was complex.  At the close of argument, the court took the case under submission or consideration. A written decision will be issued this summer.

It is notable that a court case that will dramatically affect the lives of all San Franciscans was not covered by the corporate media: 19th Avenue, would become a construction zone for years into the future, while a troubled MUNI attempts to transport an additional 17,000 riders daily and that’s not news?  This case comes at a critical time for San Francisco, when pressure for development is at its greatest and working class families can’t afford to live here anymore.

– M.A. Miller