As newly-elected Mayor London Breed seeks to reform San Francisco's housing policy, she faces considerable obstacles at the Board of Supervisors. With the emerging practice of "Supervisorial Prerogative," the Board’s political culture has moved decidedly away from citywide decision-making. New housing construction must instead navigate a tumultuous district-by-district dynamic, subject to intractable power struggles between neighboring interests. There’s no better example than the laundromat at 2918 Mission Street.
Last month, after finally being approved by the Planning Department after having to go through a historical study imposed on arguably tenuous grounds, the 75-unit housing project planned for the Wash Club Laundromat site at 2918 Mission Street faced yet another challenge the Board of Supervisors meeting on June 19, with an appeal brought against the project by the Calle 24 Latino Cultural District Council.
While the appeal was based on a number of grounds, the Board eventually voted unanimously to uphold the appeal based on only one: that the project may have negative shadow impacts on an adjacent schoolyard.
The vote was made after discussion dominated by Supervisor Hillary Ronen defending the appeal, accusing developer Robert Tillman of "having no intention of building housing on the site,” but instead wanting to obtain an entitlement in order to sell the site at a higher price. (Tillman maintains, as he always has, that he would be more than willing to sell the property for use as 100% affordable housing, so long as he gets an acceptable return, which he has yet to see.)
In the end, some aspects of the vote seem startlingly similar to an earlier appeal the Board heard and upheld in late 2016, of a 157-unit project at 1515 South Van Ness Avenue. The same concerns over gentrification dominated the discussion. Following comments from opposing parties taken out of context, Supervisor Ronen’s District 9 predecessor David Campos led a unanimous vote in favor of the appeal. The project was eventually allowed to go ahead after the developer, Lennar Communities, agreed to further financial concessions.
This pattern relies on an increasingly common unwritten rule at the Board which doesn't really have a formal name, but does exist there and in some other legislatures. At the Chicago City Council, it’s more openly referred to as "Aldermanic Prerogative." The effects of that practice on segregation and availability of affordable housing in Chicago were brought into stark relief by a recent report released by the Chicago Area Fair Housing Alliance. The findings in the study have led for calls to curb the practice.
Interviews with sources who have worked inside City Hall with the Board reveal that Supervisorial Prerogative is definitely a thing in San Francisco. Unlike the two votes described above, it's practiced more often behind-the-scenes, but nevertheless has become almost exclusively focused on housing development.
Whenever permits for a project are appealed before the Board, all eyes turn to the district where the project is located, and the Supervisor who will ultimately lead the vote. Usually, the process continues on as the District Supervisor defers while continuing the item, overseeing negotiations between the opposing parties and other constituents, ending with a compromise.
But more public invocations of the privilege do happen, particularly with District 9. The district’s successive Supervisors—Tom Ammiano, David Campos, and now Hillary Ronen – have generally maintained a policy of refusing to meet with developers, leaving organized constituent groups to levy their own ultimatums.
(Note: Fmr. Supervisor Campos has written to us contesting this statement, saying, "As a Supervisor, I had an open door policy and met with anyone who asked to meet with me, developers included. Over my tenure I met with all types of individuals, including many developers. One of the reasons there were so few land use appeals during my tenure concerning my district is because I worked with developers and community to address issues with proposed projects." You can read the publisher's note below for his full comment.)
The positive and negative stereotypes of this process hardly capture the whole picture, as the players aren’t just neighborhood preservationists or equity advocacy groups. Labor unions such as the Building Trades and Carpenters Union can also enter the mix, sometimes with conflicting goals.
For example, one of our sources cited the development at the former site of the Lucky Penny Diner at Geary and Masonic, where concessions made during negotiations over the Special Use District with labor groups forced the developer to increase the minimum percentage of Area Median Income levels qualifying for the affordable component—which happened to run afoul of several equity concerns other groups had. Savvy developers now know to frontload their projects, expecting to make concessions.
Sometimes there are exceptions. In particular, it can be more difficult for Supervisors in wealthier parts of the city to invoke the privilege, because of concerns over relative housing burdens among the districts. The narrative tends to justify the practice in order to defend the disenfranchised, not insulate a privileged elite. Nevertheless, the Board tends to vote unanimously on housing appeals regardless of project size, or possible benefit to overall housing supply.
“This is the way it works,” said Corey Smith, Community Organizer at the San Francisco Housing Action Coalition. “The argument is that no Supervisor is going to understand an issue in a given district as well as the Supervisor for that particular district…It's a balancing act between respecting that, and the fear that if you fail to defer to a given Supervisor on an issue in their district, another vote will come down the line where that Supervisor will feel free to suspend that deference when you want it.”
That said, Smith believes that prerogative in and of itself is not the biggest obstacle to building housing in the City. Instead, it merely amplifies existing bigger issues, such as redundancy and delays in the permitting process, and the more problematic aspects of the California Environmental Quality Act.
One thing is clear: Supervisorial Prerogative is integral to district elections. At least one former Supervisor, who served on the Board during the transition from at-large to district elections, told us that while "we had knock-down drag-out housing appeals all over the city" during the at-large era, “proximity may have influenced the fervor with which a particular Supe advocated for an appeal, but it wasn't indicative of the outcome."
A recent report from the Planning Department suggests much more concrete consequences of this practice. District prerogative has reinforced the general bias in San Francisco planning towards the placement of high density housing – whether market rate or affordable – in the northeastern corner in the city, and not much anywhere else.
In the end, how far City government allows the influence of prerogative to creep outside the politics of the Board of Supervisors and into the policy-making machine of City departments determines whether prerogative becomes either a feature or a bug of district elections.
"When you have district elections, you will always have a degree of district prerogative – up to a certain point, that's the way it should be, as a district Supervisor is often the only one that can speak strongly to certain neighborhood issues,” said David Latterman, political strategist and data analyst at Brick Circle Advisors. “But there has to be a minimum threshold. Without good leadership in the City departments, bureaucracy follows the lead of the Supes, whether consciously or not. City department heads are the firewall between the dysfunctional politics and citywide policy. That’s where a new Mayor can make a difference.”
Meanwhile in the Mission, the battle wears on. "We’re in legal mode now," says Rob Tillman. "I think there's a really good case [for a lawsuit] under the Housing Accountability Act as well as other causes, as there's nothing in current city law about shadows and schoolyards, there's nothing about it in the CEQA guidelines or the Eastern Neighborhoods Plan either. Basically, the Board of Supervisors made a new law with no supporting evidence."
A letter sent to the Board of Supervisors earlier this month by Tillman's attorney, David Blackwell, alleges further that with its vote, the Board “fails to reveal an analytic route from the evidence in the record to its decision,” going against the recommendations of staff and City departments, which constitutes an Abuse of Discretion under California Code of Civil Procedure section 1094.5.
That "new law,"according to some sources, is already manifesting itself at the Planning Department. A spokesperson for Planning has confirmed that they will be “modifying how we analyze shadows from proposed projects on schoolyards moving forward.” When asked how many projects in the housing pipeline this change would affect, they could not provide an answer for us by press time.
Publisher's Note: Former Supervisor David Campos wrote to us after publication of this article, contesting the statement that his office had a policy of refusing to meet developers. His full comment: "I had few land use appeals during my days as Supervisor because I met with so many developers to resolve issues. So [the writer's] assertion that I had a blanket rule against meeting with developers is flat out false. Which developers did I refuse to meet with? I even met with Maximus. Bad journalism when someone makes that accusation and hides behind anonymous sources to avoid responsibility.
I ask for a retraction of the statement unless he can back it up. As a Supervisor, I had an open door policy and met with anyone who asked to meet with me, developers included. Over my tenure I met with all types of individuals, including many developers. One of the reasons there were so few land use appeals during my tenure concerning my district is because I worked with developers and community to address issues with proposed projects. So [the writer's] assertion that I had a rule of not meeting with developers is false."
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