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Thursday, July 5, 2012

Central Subway: Opponents Claim Charter Violation Dooms Project

Posted By on Thu, Jul 5, 2012 at 6:55 PM

click to enlarge Has the train left the station for the Central Subway or not? - N-JUDAH CHRONICLES/LAUREN OLIVER -- USED WITH PERMISSION
  • N-Judah Chronicles/Lauren Oliver -- Used with Permission
  • Has the train left the station for the Central Subway or not?

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..."

The Central Subway could use a similar boost - N-JUDAH CHRONICLES/LAUREN OLIVER -- USED WITH PERMISSION
  • N-Judah Chronicles/Lauren Oliver -- Used with Permission
  • The Central Subway could use a similar boost
This hardly "answered the question" for Central Subway opponents, who are quick to point out that a sewer and a subway are not exactly synonymous. What's more, the city adopted a new charter in 1996 -- and it contains the language of Section 4.113, which seems fairly unequivocal about what you can and cannot build on park land.

"All they've got is the City Attorney's opinion. That doesn't establish any precedent -- and what the hell does this opinion have to do with the charter today?" says transit expert Jerry Cauthen, a founder of Save Muni and longtime Central Subway opponent. "I see nothing to stop a lawsuit."

The Save Muni types aren't the only ones talking about a lawsuit. North Beach merchants, enraged over disruptive construction plans only just disclosed to them, appear to be giddy for litigation. A Thursday e-mail sent by Marc Bruno to fellow irate North Beach residents and businessmen noted "We are in discussions with three possible attorneys. Some of you have been thoughtful enough to suggest someone to take on our case. Please keep doing that as we are currently looking."

It remains to be seen if Save Muni and the newly formed Association of Businesses and Community Leaders Opposed to the Extraction Plan (ABCLOEP) -- the irate North Beach folks -- will join forces. When asked, Bruno said "That's definitely a good idea. I'm not opposed to that at all." Cauthen said he'd love it. 

Those who'd prefer to prevent the Central Subway may not even need to win a lawsuit to achieve that goal. Last week in D.C. the House passed an amendment barring future federal funding for the project. This likely moved the timeline for when elected officials even begin to talk about undoing that vote back to October. Internal e-mails obtained by the Bay Citizen revealed

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.

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About The Author

Joe Eskenazi

Joe Eskenazi

Joe Eskenazi was born in San Francisco, raised in the Bay Area, and attended U.C. Berkeley. He never left. "Your humble narrator" was a staff writer and columnist for SF Weekly from 2007 to 2015. He resides in the Excelsior with his wife, 4.3 miles from his birthplace and 5,474 from hers.


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