Appeals Court Rejects Arguments On 8 Washington Land Swap

Appeals Court Rejects Arguments On 8 Washington Land Swap
Neighbors protest on Aug. 15, 2014. (Photos: Geri Koeppel/Hoodline)
By Geri Koeppel - Published on September 19, 2015.

Opponents of the luxury condo project at 8 Washington at The Embarcadero were dealt a big win on Thursday when the First District Court of Appeal ruled against arguments by the State Lands Commission (SLC). This could be the nail in the coffin for the hotly contested development.

The courts heard the case on June 23rd and on Thursday came back with a decision, saying a land-swap deal between the SLC and Port was invalid. Now that the litigation has ended, District 3 supervisor candidate Aaron Peskin, who has rallied hard to oppose the development, said he'll contact the Port Commission before its Tuesday meeting to tell them to "cut bait" on the deal.

"This ought to trigger the end of the 8 Washington story," Peskin said, "and I think it is incumbent on the Port Commission to finally formally end their exclusive negotiating agreement with Pacific Waterfront Partners. It is time to end this sad chapter of ignoring the electorate and allow the community and the Port to move forward with alternative plans that we have long proposed."

One of the attorneys involved, Jon Golinger, said he is going to send a similar letter to the Port Commission. "In my view, this was the last leg the 8 Washington developer had to stand on," he said. The exclusive negotiating agreement technically expired several years ago, he said, but based on language in the contract, it was still valid due to ongoing litigation.

District 3 Supervisor Julie Christensen had a similar sentiment: "I agree it’s pretty clear that the 8 Washington project as it was originally envisioned has been stabbed in the heart and turned to dust." She said she passed a resolution weeks ago decertifying the environmental impact review, so Thursday's decision was redundant. “I’ve been clear since I came into office that we need to start over on that project," she said. When asked if that meant a housing project or another idea, she said, "Nothing is off the table," and added, "Let’s start the discussions from scratch. I'm in no rush to see anything happen there."

The case hinged on the SLC's assertion that land-swap deal was exempt from a California Environmental Quality Act (CEQA) review on a couple of counts, including title and boundary issues. The SLC appealed a Superior Court ruling of a case brought by attorney Susan Brandt-Hawley for Defend Our Waterfront, a coalition of groups opposed to the project.

"This ruling cures the illegal transfer of Seawall Lot 351," Brandt-Hawley said in a statement, referring to the Port parcel of land slated for the development. "It will also end the State Lands Commission’s routine and unlawful decades-long failure to conduct environmental review for its public trust land exchanges throughout California when, as here, there are no title or boundary issues."

Seawall Lot 351 is currently a parking lot.

Golinger said, "We knew on the merits we should win." He explained the "title and boundary issue" by saying, "Basically, it’s a little loophole that developers and the current State Lands Commission, including Lt. Gov. Newsom, has expanded into a tunnel you can drive a Mack truck through."

So what's next? The developer, Pacific Waterfront Partners, still has an exclusive negotiating agreement for the slice of land with the Port. But it'll have to submit a new plan with a scaled-down height. That's because voters in 2013 limited the project's height to eight stories and in 2014 required any project exceeding height limits on Port land to get approval at the ballot box (the latter measure is being fought in the courts, but it's still in effect at this time).

Pacific Waterfront Partners didn't respond to a request for comment, and the Port referred questions to the City Attorney's office. When asked there the project will go from here, Deputy City Attorney Kristen Jensen said, "The only folks that can answer that question are the developers," adding that the city and Port have not seen any pending project proposal.

Pacific Waterfront Partners' website still shows plans for the project, saying it will include 134 residential units, 20,000 square feet of restaurants and retail, and 30,000 square feet of outdoor public open spaces and parks, including a new health club and aquatics center.