The Golden State Warriors will delay construction of their Mission Bay arena by at least a year, hoping to move to San Francisco by the fall of 2019, said Warriors chief operating officer Rick Welts last month in an interview with the San Jose Mercury News. Welts’ announcement came after the Mission Bay Alliance filed a California Environmental Quality Act (CEQA) suit against the Office of Community Investment and Infrastructure (OCII) and the City and County of San Francisco in Sacramento Superior Court in early January. The Alliance filed a separate suit against the University of California, San Francisco (UCSF) in Alameda Superior Court late last year.
In the CEQA suit, the Alliance argues that OCII, the City, and numerous municipal agencies, including the San Francisco Planning Department and Municipal Transportation Authority (SFMTA), violated CEQA and the Mission Bay South Redevelopment Plan by not considering other locations for the arena and responding poorly to traffic, air quality, and noise concerns. In the suit against UCSF, the Alliance asserts that Chancellor Sam Hawgood acted illegally in reaching an agreement with the Warriors to provide land to the team. According to the Alliance, Hawgood signed a contract without approval from the UC Board of Regents that’ll pose serious health and safety dangers to Bay Area residents.
Jennifer Wade, a Mission District resident whose six-year-old son, Magnus, is a UCSF Medical Center patient with a congenital heart defect, joined the Alliance in both suits. “My family depends on having ready access to USCF Hospital,” Wade said, at a press conference held at her home, with Magnus present. “It deeply concerns me that San Francisco officials would approve an arena location that could jeopardize access to this critical care.”
The CEQA suit seeks to enjoin arena construction. The Warriors responded by filing a motion to transfer the case to San Francisco. “We agreed to a schedule on the motion to transfer venue, with that motion heard on January 29,” said Patrick Soluri, attorney and partner in Soluri Meserve, a Sacramento law firm which serves as counsel to the Alliance.
Although the CEQA suit is on an expedited schedule, as required by the CEQA statute, the Alliance can’t argue its substantive allegations until the judge decides where the case will be heard. According to Soluri, the Alliance filed the suit in Sacramento because OCII is a successor to the now-dissolved San Francisco Redevelopment Agency, which was based in Sacramento. “There’s some fairly Byzantine statutes that require that,” said Soluri.
“Their filing in Sacramento was arguably permissible, but it is a stretch,” said Christopher Neary, a Willits-based attorney who isn’t a party to the case. “The subject statute appears to apply only to lawsuits regarding the dissolution of redevelopment agencies, not how successor agencies administer redevelopment plans.” Neary thought the Alliance filed in Sacramento because it’s concerned that San Francisco juries and judges might be influenced by public opinion. “Even their own polls, which they say reflected the poll response when the people polled were provided the “facts,” reveal strong public support for the arena project,” he said.
The Alliance’s suit includes a request for a writ of mandate, a call for the court to order OCII and the City to set aside certification of the final environmental impact report and invalidate all arena approvals.
According to Kim Pedersen, a Sacramento Superior Court spokesperson, Judge Michael Kenny will preside over the Warriors case. Kenny was originally assigned to hear a suit initiated by three Sacramento residents, represented by Soluri, who alleged that Sacramento city officials secretly and improperly promised benefits to the Sacramento Kings to encourage the success of the Kings’ arena. Kenny recused himself after it became known that he’d signed a petition calling for construction of the arena to be voted on. The case was then assigned to Judge Timothy Frawley, who ruled that the residents’ allegations lacked merit.
Neary said the Alliance may consider Sacramento a preferable forum because its judges and juries are removed from events in San Francisco. In addition, the Sacramento court hears many cases involving the public sector. Neary said Sacramento judges usually want government agencies to adhere closely to administrative regulations and laws. There, the court might be more likely to penalize OCII and the City for failing to follow proper procedures.
Dave Owen, a UC Hastings law professor, said the Alliance’s lawsuit is sweeping, restating many of its previous arguments regarding traffic and medical center access. “They are throwing in the kitchen sink…to preserve any issue they might want to use for later,” said Owen.
Owen said the case could be appealed to the Third District Court of Appeal. If the Alliance lost there, it could take it to the California Supreme Court. “Typically, the California Supreme Court is likely to consider hearing a case if it sees it as raising an important issue of statewide interest. (Here) the legal issues are primarily location-specific. The case doesn’t yet raise any legal issues that are likely to be of broader interest,” said Owen.
According to Owen, CEQA cases are hard to win. “A judge will use a deferential standard of review. They give the doubt to the agency,” he said. “If they followed the correct procedure and conducted a reasonable analysis, they are going to win.” Owen said even if the Alliance wins, the court has the discretion to allow the arena to be constructed. “The court can say, “I’m going to let the project go forward, but I’m going to require you to fix the analysis of this particular section and come up with a few more mitigation measures,”” he said.
Neary said the likely sticking point will be the traffic analysis. “If I was a judge, that’s one thing that would catch my eye. Whether that is mitigated; the parking situation. I would ask, “How much information did you have to make these decisions?”” said Neary.
PJ Johnston, Warriors spokesperson, said he doesn’t expect the CEQA suit to succeed. “I don’t think they can convince a judge in either Sacramento or San Francisco. During our three years of intense scrutiny and extensive public planning process, the Warriors won approval of one hundred percent of the board and agencies that we went before. They have not been able to convince a single elected or appointed official to deny,” said Johnston.
“The Mission Bay Alliance has been throwing mud at the wall for almost a year now,” Pat Valentino, vice president of the South Beach Mission Bay Business Association, said. “None of it has stuck. They were unprepared for the Board of Supervisors hearing and wasted taxpayer money on an appeal that, if successful, only benefits a small group of wealthy obscure obstructionists. They do not represent the community. They dragged a few poor individuals to make public comment without fully informing them of what they were commenting on.”
According to Sam Singer, Alliance spokesperson, the Alliance sees delay as a victory for itself and City residents. “The Mission Bay Alliance had urged consideration of an appropriate alternative location, yet the Warriors refused to consider it. We hope the City will use this one year delay to select a better site that will avoid further gridlock in San Francisco and protect the Mission Bay medical and biotechnology community. The Mission Bay Alliance thanks the community for its support over the last nine months and will continue to fight this project until it is removed permanently from Mission Bay,” said Singer.