Marina Safeway Developer Asks Judge to Toss Neighbors' Due-Process Claim

The developer of the proposed housing towers at the Marina Safeway has asked a federal judge to dismiss a key claim in a lawsuit brought by neighborhood opponents. It says they have no constitutional right to a public hearing on the project.

The lawsuit

KQED reported in September that the YesAND Foundation, a new housing nonprofit, and four Marina residents had sued San Francisco in federal court. They argue the city wrongly let the project at 15 Marina Blvd. use AB 2011, a state law that removes public hearings and CEQA review for projects that qualify. The suit also names PG&E, which once ran a manufactured gas plant on the site. It alleges public nuisance and negligence over contamination. The Chronicle reports that a neighborhood coalition is also a plaintiff, and that the defendants include Align, the city and city officials.

The motion

The Chronicle reports that Align Real Estate filed a motion Wednesday asking the court to dismiss the plaintiffs' due-process claim under Section 1983, an 1871 civil-rights law. It also asked the court to send any remaining claims out of federal court. Align argues the city correctly found the project eligible for streamlined approval. In a statement, Align principal Dave Balducci said the lawsuit tries to use civil-rights laws to block "848 homes, including 86 affordable homes, in a wealthy neighborhood that has built far too few."

Stuart Gross, the plaintiffs' lawyer, told the Chronicle he would respond at the appropriate time. He called Align's position that his clients, including tenants in rent-controlled apartments next to the site, have no right to be heard "interesting and telling." A judge has not ruled on the merits.

Where the project stands

Align first proposed towers of 25 and 22 stories. After criticism, including from Mayor Daniel Lurie, it cut them to 22 and 18 stories above a replacement Safeway. The city has taken the position that the project qualifies under AB 2011. KQED reported that state Sen. Scott Wiener and Assemblymember Buffy Wicks, who worked on the law, support the project, while Supervisor Stephen Sherrill opposes it.