On August 24th, BART Director Tom Radulovich, who heads Transportation for a Livable City, sued to remove Proposition H – the Downtown Parking Initiative – from the November ballot. The measure’s petition that proponents had distributed, as well as the City Attorney’s official ballot description, includes false statements about City parking policy and misleading information about Prop H. Given that the Elections Department removed the Bayview Referendum last year on a questionable technicality about signature gathering, it is only reasonable that Radulovich’s lawsuit should prevail. Removing Prop H should also be a mere formality, as Republican sponsor Don Fisher agreed earlier this month to let the parking initiative die a quiet death – after cutting a deal with Supervisor Aaron Peskin. If Fisher and his Downtown cronies contest Radulovich’s suit and fight to keep Prop H on the ballot, we know that their word means nothing.

The 500-word Ballot Title and Summary that Prop H supporters used to collect signatures had three basic flaws that misled voters into putting it on the ballot. First, it made a false statement about current Downtown parking policy – leading voters to believe that less parking can be built under current rules. Second, it erroneously claimed to be consistent with the City's General Plan. Third, it neglected to mention the most drastic change in Prop H – a huge increase in allowable parking space for Downtown office buildings.

The Title and Summary – which was pre-approved by the City Attorney for distribution – said that at present in “certain downtown zoning districts,” developers can build at least one parking space for every four housing units, but no more than one for every three. Current law actually provides for a maximum of three parking spaces for every four units Downtown, and in some places one-for-one. In other words, voters who signed to put Prop H on the ballot (which promises more parking) were led to believe that less parking can be built Downtown than the law provides.

Prop H also violates the City General Plan, which calls for a “transit-first” planning policy. In a July 27th report to the Elections Department about Prop H's impact, Planning Director Dean Macris mentioned on the very first page that the measure could violate City policy. But the petition as circulated informed voters that Prop H was an “initiative ordinance to implement the objectives and policies of the San Francisco General Plan.”

The most draconian part of Prop H deals with Downtown office parking. Current law caps the number of parking spaces in commercial buildings to 7% of the floor area. Prop H loosens it so that a building with 500,000 square feet and 189 parking spaces could have anywhere from 500 to 666 spots – or a 250% increase. That means 3 times the number of people driving Downtown during rush hour, but the Summary ignored this whole portion. Would people have signed it if they knew about it?

State law requires a Ballot Title and Summary to be factually correct and not misleading, so that voters can objectively decide whether to put it on the ballot. The only remedy is to disqualify the initiative, even if the requisite number of signatures were collected. And in San Francisco, courts have not been shy about finding minor technicalities to remove citizen initiatives from the ballot.

Last year, the Elections Department invalidated 33,000 signatures to challenge the Bayview Redevelopment Plan because petition gatherers did not carry the entire 500-page document for voters to review. While that was a dubious procedural question, here we have a basic issue of substance. The Prop H petition gave voters blatantly false information, so any logical conclusion would lead to invalidating this measure.

Not that removing Prop H from the November ballot should matter much in the long run. After all, it would simply be the final nail in the coffin of a deeply flawed parking initiative that should never have been introduced.

The conventional wisdom is that Prop H will fail, or at least its policy proposals will never see the light of day. Proposition A, the Charter Amendment on the November ballot to revamp Muni and sponsored by Supervisor Aaron Peskin, has a parking provision that trumps Prop H’s draconian policies – even if both measures were to pass.

After the Board of Supervisors put Prop A on the ballot, Peskin met with Prop H proponents and allegedly brokered a deal. Don Fisher and others would not campaign against Prop A, and they would let Prop H die a quiet death. In exchange, Peskin would introduce a modest parking proposal, which may be put on the February 2008 ballot.

So if Don Fisher is a man of his word, getting Prop H thrown off the ballot is not a problem. According to the deal that he cut with Peskin, he wasn’t going to campaign for it anyway. Now that Tom Radulovich has sued to remove Prop H from the ballot, will Fisher hire a lawyer to aggressively litigate this matter? If he does, it implies bad faith on his part.

Radulovich’s lawyer, Michael Sweet, filed a writ of mandate last week and the judge held an emergency hearing on August 24th – due to the matter’s time sensitivity. The writ named the Department of Elections as Defendants for refusing to take Prop H off the ballot, and the Prop H campaign committee as the “real party in interest.”

Attorney Jim Sutton appeared on behalf of the Prop H supporters, but that may just be because they were named in the lawsuit. The real question is – now that a lawsuit has been filed, how much time and energy will Don Fisher spend to keep Prop H on the ballot? After all, there was an agreement to let the measure die a quiet death.

If Fisher puts up a fight to keep this on the ballot by litigating the case, Peskin should think twice about going along with his side of the deal. Why give the other guys what they want, if they’re not going to live up to their side of the bargain? It wouldn’t make sense to do otherwise, but Fisher still has time to prove he’s a man of his word.

Send feedback to paul@beyondchron.org