Court rules Bayview Hunters Point redevelopment
Redevelopment plan continues in effect
From the office of San Francisco City Attorney
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
"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.