Citizens for Better Streets v. Board of Supervisors

*3 Opinion

Plaintiffs Citizens for Better Streets (Citizens) and Richard Wall brought this taxpayers’ action to enjoin an alleged unlawful use of public property by the Board of Supervisors, Mayor, and Planning and Housing Directors of the City and County of San Francisco (collectively, City). Plaintiffs contend that defendants have threatened to act unlawfully by proposing to lease for purposes of low-income housing portions of the former right-of-way of the Embarcadero Freeway, which was demolished in the aftermath of the 1989 Loma Prieta earthquake. Plaintiffs contend that under Streets and Highways Code section 72 (section 72), by which the State of California granted these lands to the City, the City was required either to build roads upon the affected lands or to sell them at market value and apply the proceeds to road building. The trial court denied plaintiffs’ motion for a preliminary injunction, finding among other things that plaintiffs were not likely to prevail on the merits. We will affirm that order.

BACKGROUND

It is undisputed that the earthquake of October 1989 damaged Route 480, a freeway in San Francisco commonly known as the Embarcadero Freeway. On October…

I respectfully dissent.

The statute by which the land was conveyed to the City requires that the property, or the proceeds of its sale, be used for the sole purpose of building a system of alternate streets to take the place of the Embarcadero Freeway that collapsed during the earthquake. The City maintains that it has complied with both the spirit and the letter of the statute. The majority agrees. I do not. The City maintains, and the trial court impliedly found, that neither the property nor the sales proceeds therefrom are needed for the project for which the property was conveyed nor to repay the $5.6 million loan incurred by the City to complete it. For purposes of this appeal appellant concedes that the trial court did not abuse its discretion as a fact finder. 1 In making this concession, appellant has pared the issue down to this single question: Is the City free to use or cause the property to be used for housing? I believe the answer to that question is it may not do so without legislative approval.

The City has structured a long-term lease to a private commercial developer that it maintains is the “sale” referred to in section 72. If so, it is a “sale” *10 for…

Plaintiffs Citizens for Better Streets and Richard Wall brought this taxpayers' action to enjoin an alleged unlawful use of public property by the Board of Supervisors, Mayor, and Planning and Housing Directors of the City and County of San Francisco (collectively, City). Plaintiffs contend that defendants have threatened to act unlawfully by proposing to lease for purposes of low-income housing portions of the former right-of-way of the Embarcadero Freeway, which was demolished in the aftermath of the 1989 Loma Prieta earthquake. Plaintiffs contend that under Streets and Highways Code section 72 (§ 72), by which the State of California granted these lands to the City, the City was required either to build roads upon the affected lands or to sell them at market value and apply the proceeds to road building. The trial court denied plaintiffs' motion for a preliminary injunction, finding among other things that plaintiffs were not likely to prevail on the merits. We will affirm that order.

It is undisputed that the earthquake of October 1989 damaged Route 480, a freeway in San Francisco commonly known as the Embarcadero Freeway. On October 7, 1991, the Legislature…