Central Subway: $1.6 Billion Project May Hinge on Judge's Definition of "Recreation"

rsz_collage_recreation.jpg
West Valley City, Utah
Huh. Don't see a subway on there.
Yesterday, SF Weekly broke the news that opponents of the Central Subway have found a loose legal thread they hope unravels the embattled $1.6 billion project.

A portion of Section 4.113 of the City Charter -- a backwater within the voluminous document governing our city -- notes that "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."

You didn't miss a vote about the planned subway station at Union Square, which is on park land. It didn't happen. If a court finds the city erred and must go to the voters before building the station -- a job that's scheduled to go out to bid in the next month -- the resulting delay would likely kill the project. So, a great deal may be riding on what a judge thinks is "recreational" and what isn't.

David Levine, a law professor at Hastings, was quoted saying as much in the Examiner this morning. "The City Attorney could argue that the structure has a recreational purpose because it brings people to Union Square," said the expert in civil procedure.

But wouldn't this justify putting, say, a helipad into Union Square? And wouldn't the fact that the ever-shrinking projected ridership for the Central Subway might mean fewer public transit riders would have access to the park if the line is built than at present be an argument worth making? Both are interesting points, says Levine. It's all a matter of nuance. How much of Union Square would be affected? How much of an impact would this structure have? How recreational will the debate over "recreational purposes" be?

If Levine were in the city's shoes, he'd be nervous right now. "At the end of the day, could you really stand on the argument this qualifies as a recreational purpose or not?" he asks. "It's not a slam dunk one way or the other" -- for the proponents or opponents of the subway.

The proponents, however, have a lot more to lose. The Waiting for Godot-like saga of when $942 million in federal funds will arrive began in late 2011, and has, agonizingly, extended month by month. On Friday in D.C., the House passed an amendment barring future federal funding for the project. While local Democrats vowed to undo this action, time is money. It's unlikely this discussion will even start until October, and 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.



Direct questions to Muni about what assurances the organization has been given that it can move ahead with construction without a vote have not been answered. The City Attorney's office declined to answer whether it has specifically informed Muni on this matter, instead producing a 31-year-old opinion regarding the building of sewer tunnels beneath public parks (the likening of the Central Subway and a sewer is an analogy the project's opponents have not missed).

That opinion, which you can read here, cites a 1928 case in which it was decided that the city could "lawfully use portions of two parks for streetcar tracks." In this case, while the purpose of the streetcar line was to move people between Downtown and the Sunset, the court concluded it would add "to the enjoyment of the public of the privilege of the park."

It warrants mentioning, however, that the city adopted a new charter in 1932 -- and did so again in 1996. And the language of Section 4.113, adopted in 1996, seems far more clear on this matter than in prior iterations. Levine noted that "no lawyer in his right mind" would rely solely on a 31-year-old, somewhat tangentially related opinion of the sort currently being used to justify subway construction.

As he told the Examiner, Levine is dubious that a dispute over merely this portion of the Central Subway project would induce a judge to enjoin the whole thing. And yet, it's difficult to imagine the Feds releasing funding for the project while the possibility remains that a judge's order could necessitate a massive redesign and vote -- which the subway's proponents would then have to win.

"That's a separate political fallout," he says. "It's like a string of dominoes."

Whether watching these dominoes tumble is "recreational" depends on how one feels about the Central Subway.

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