By John Ferrannini

A lawsuit against the City of San Francisco alleging the closure of the Upper Great Highway to make way for Sunset Dunes park was done improperly is moving forward.

Matthew Boschetto, et al. v. San Francisco was filed in San Francisco County Superior Court on March 12. It alleges that Proposition K – the successful ballot measure that led to part of the westside thoroughfare being closed to cars starting March 14 – was not within the voters’ purview to close and that it ran afoul of the California Environmental Quality Act (CEQA).

The civil complaint states the supervisors who voted to place the measure on the ballot, including District 4’s Joel Engardio, “ignored the state’s plenary authority over traffic control and roads and unlawfully placed a measure before San Francisco voters that was not in the voters’ power to decide.

“To make matters worse, this measure exceeds the limited authority given to cities and counties to legislate in the field of traffic control and roads by closing the Upper Great Highway to most vehicles while allowing other vehicular traffic on this road and by incorrectly determining that the closure of a major county highway is not subject to CEQA,” the lawsuit continues.

A case management conference occurred in the courtroom of Judge Jeffrey Ross on June 2 at the Superior Court at 400 McAllister St. Witnesses to the hearing both said Ross questioned why the City is making changes at the site as the suit proceeds.

“My perception of it was the judge asked about interim improvements made in the park,” Zach Lipton, a volunteer with Friends of Sunset Dunes, said in a phone interview. “The City Attorney’s office explained these are interim improvements, everything temporary. Nobody is making major, capital improvements to the park. That would be a process that would undergo environmental review in the future. The judge was satisfied with that and went into discussing case management going forward.”

Lipton said these temporary improvements include art and a piano donated to the City and to the friends’ group for use by the City.

That is not how Boschetto saw the proceedings, however.

“Judge Ross called out the response of them continuing to do the work,” Boschetto said in a phone interview. “The city attorney said it was temporary, but it involves reinforced concrete. The fact that he was calling that out shows, at the very least, our case has strong merit. I don’t think he’d make that statement if it were a closed case.”

Still, Lipton pointed out that, “The plaintiffs have not asked for an injunction, court order, or anything to stop the interim improvements,” he said, adding that, “The judge was not particularly concerned with the city attorney’s explanation.”

Asked why the plaintiff’s attorneys did not ask for an injunction, Boschetto said, “The standard is very high for a temporary restraining order.”

“We really wanted to get the facts heard as soon as we could,” he said.

Boschetto’s attorney Jim Sutton, a partner at Rutan & Tucker, LLP, also commented on the proceedings.

“We are very pleased that the judge is taking an interest in the case even at this preliminary stage, and that he is holding the City’s feet to the fire with respect to what it’s doing at the Great Highway,” Sutton said. “We are also pleased that the judge is pushing to hold a hearing at the earliest possible date, because all of San Francisco deserves an answer about whether Prop. K is illegal.”

A hearing was set for Sept. 8, pending the availability of the parties. A tentative hearing will be no later than Sept. 29 in any case.

Though Prop. K received majority support in the City, no precinct in District 4 supported the measure, which led upset members of the public to spearhead a recall campaign against Engardio. That election will be held Sept. 16. Engardio declined to comment for this report. He has previously asked people opposed to the park, which was christened as Sunset Dunes in April, to keep an open mind.

Lucas Lux, the president of Friends of Sunset Dunes, shared his thoughts.

“While the same group of anti-park zealots fail to impress a judge with their complaints about hammocks and fitness equipment, thousands of regular people are enjoying the amenities so much that Sunset Dunes is already the city’s third most visited park,” Lux said.

“Plaintiffs are entitled to their opinion of what happened at the case management conference,” said Jen Kwart, a city attorney’s office representative. “But the city attorney’s office clearly explained that the existing improvements at Sunset Dunes will remain in place until the City completes the planning and public engagement process for the park’s long-term vision. The voters of San Francisco lawfully passed Proposition K, and we will continue to uphold the will of the voters. We look forward to discussing the merits of this case with the court.”