In a potentially game-changing allegation, foes of the controversial Central Subway project claim the city is violating its own charter by moving forward to construct a station at Union Square without putting the matter up for a vote.
The language -- which could possibly derail the $1.6 billion subway line -- hails from Section 4.113 of the city charter. This is an obscure provision even among those well-versed in the charter. But its ramifications loom large.
Subsection 2 of that charter section notes the following: "No park land may be sold or leased for non-recreational purposes, nor shall any structure on park property be built, maintained or used for non-recreational purposes, unless approved by a vote of the electors."
There has been no popular vote on whether to construct the planned station at Union Square -- which is park land -- and none is scheduled. Opponents of the Central Subway say the law is clear and that the city is on the wrong side of it:
"They are in absolute, abject violation of the charter," says former Board of Supervisors President Aaron Peskin, a onetime Central Subway proponent turned bitter foe. "There's only two ways to get out of this legally. Both require going to the people. You can change the charter or comply with the charter. Them's be your choices."
Muni and the City Attorney's office, naturally, see things differently. Muni spokesman Paul Rose said "There was some previous discussion on this item," and that the City Attorney's office had been consulted. City Attorney spokesman Matt Dorsey refused to comment on whether specific questions about the Central Subway and Union Square had been asked and answered, instead producing "a 1981 opinion that answered the question."
That 31-year-old document, which you can read here, deals with construction of a sewer pipeline beneath city parks. It concluded the pipelines were permissible, provided that "the proposed use will not destroy or substantially impair use of the property for park purposes" and "restrictions do not prohibit subsurface use, even though that will require the temporary disruption of the surface..."
that Muni could bleed $4 million for every month it keeps in place the designers
and managers needed to initiate the Central Subway project without actually doing so.
Lawsuits threatening the viability of the Central Subway could induce the Federal Transportation Agency to withhold funds. And since cost overrides must be made up with local money, any delays could be a huge problem for Muni. A lawsuit -- or, for that matter, a "vote of the electors" -- would eat up precious time and money.
"I can confirm that we will move forward with all required approvals for this specific project," said Rose.
Central Subway opponents are betting he's wrong.