The Central Subway’s proposed station at Union Square may violate provisions of the City Charter, a development that could lead to litigation against the $1.6 billion rail expansion project.
A section of The City Charter states that structures with “nonrecreational purposes” cannot be built in public parks like Union Square unless the plans are approved by the voting public. Muni plans to erect a 59-foot-long structure in Union Square as the entry point to the new station being built underneath the park.
Jerry Cauthen of Save Muni, a group opposed to the Central Subway project, said the plans for Union Square violate the City Charter. He said if the San Francisco Municipal Transportation Agency, which operates Muni, intends to move forward with its Union Square plans, it would likely be hit with litigation from opposition groups, imperiling the project.
The City Attorney’s Office has advised the SFMTA to proceed with the Union Square station proposal, despite the threat of a lawsuit. Dennis Herrera’s office cited a 1981 city attorney opinion that allowed for manhole covers in local parks as justification for the Union Square structure.
Cauthen countered that the City Charter has been updated since that 1981 opinion. Plus, comparing manhole covers to a 59-foot-long structure is not a logical justification, he said.
“A manhole in the park won’t ruin the park, and it serves an essential purpose,” Cauthen said. “When you start talking about letting in big structures, then things get very sticky.”
David Levine, a professor of law at UC Hastings, said any lawsuit against the project would depend upon a judge’s interpretation of “non-recreational.”
“The wording in the City Charter is pretty flexible,” Levine said. “The city attorney could argue that the structure has a recreational purpose because it brings people to Union Square.”
Levine also said he was doubtful that a judge would enjoin the entire project based on a dispute surrounding a portion of a single station.
Paul Rose, spokesman for the SFMTA, said the Union Square project already has been cleared by the Recreation and Parks Commission, along with the Arts Commission and the Historic Preservation Committee. It will go before another round of approvals at the Recreation and Parks Commission in two months, Rose said.
If a lawsuit is filed against the Central Subway, it could be another headache for planners of the project. The SFMTA is still waiting to hear back on a $942 million federal loan, which was initially expected to arrive last December.
The U.S. House of Representatives recently voted to strip all future federal funds for the project, although the Senate still supports the plan. Representatives from the Bay Area’s congressional delegation expressed confidence that the funding would be restored in the Conference Committee between the two chambers, although that could delay the arrival of the federal funds. SFMTA planners have said that each month of delay could add $4 million to the project.