The battle of Brotherhood Way

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Judge Kopp: Did anyone read his brief?
SF Newspaper Co. Inc. photo

Brotherhood Way is a creature of another era. Tucked between the San Francisco Golf Club and ParkMerced, it was long known as Stanley Way. But in 1958, under Mayor George Christopher, the city, which owned all of the land on the south side of the street, turned that property over to a long list of religious institutions and renamed the street to reflect its role as a place for houses of worship. It’s now home to six churches or synagogues and nine religious schools. It has its own (religious) neighborhood association.

And this quiet little corner of the city has been the scene of a pitched battle over a plan to build 182 housing units on an empty patch of land on the north side of the street.

Opponents of the project say the area was set aside for educational and religious uses, not housing -- and they argue that the expansion of ParkMerced will add too much congestion to the area. Supporters say the west side of town needs to acept more housing and more density.

It’s gotten ugly: At one point, the Archbishop himself ordered the pastor of St. Thomas More Catholic Church to quit agitating against the development. Sean Elsbernd, who represented the district for eight years, infuriated neighbors when he supported the project, and later apologized for his insensitivity to their concerns.

And seven years after the Planning Commission and the supervisors gave the project a green light, it still hasn’t broken ground.
Now the developers are ready to go -- and the churches, aided by retired Judge Quentin Kopp, are trying once again to shut it down.

Kopp’s been arguing for some time now that the project needs to go back for a new permit because too much time has passed and nothing has happened. But he’s got another argument, too, and he brought it to the Board of Appeals Jan. 9. See, the original deal had a problem with transit access, since there isn’t enough Muni capacity along Brotherhood to handle 300 or so new residents. So the developer agreed to build two pedestrian walkways from the project up to Font Blvd. in Park Merced. But according to Kopp’s appeal, ParkMerced management never agreed to the easements that would be necessary to build a path through its property.

Instead, in 2008, Zoning Administrator Larry Badiner unilaterally changed the requirement, allowing for one footpath to the edge of Park Merced -- with some vague agreement that later there might be an extension to the Muni stop. That, Kopp argues, should have triggered a new Conditional Use application and a new hearing. Oh, and in the meantime, ParkMerced has just moved to greatly expand the size of its complex, so maybe that should be considered, too.

The Board of Appeals rejected Kopp’s arguments, but he’s petitioning for a rehearing, in part because the board chair wasn’t present for meeting. Kopp argues that this is a quasi-judicial board -- “and you don’t go before the Supreme Court with only eight of the nine members present.” Under city rules, though, four out of five is a quorum and able to hear the matter.

Kopp has another argument, too -- one that’s unusual, perhaps unique: He claims none of the board members actually read his original appeal brief.

Kopp, see, asked during the hearing if all of the members had read the papers he submitted, and none of them responded affirmatively. “It is appearent and inferable that no members of the short-handed Board of Appeals had read Appelants’ brief before the hearing, or at all,” the motion for rehearing states. “The manifest failure of the four members present to real Appellants’ carefully-prepared brief constitute extraordinary circumstances and injustice.”

I’ve been able to reach two of the board members, Frank Fung and Darryl Honda, and both insist they read the brief. “I read every case in its entirely,” Fung said, “and so does everyone on this panel.” Honda, who is new to the board, also said he read the documents. “I bust out the highlighter pen and go through all of the briefs in every case,” he said.

So why didn’t they answer Kopp’s question? Well, Fung says, it took them all by surprise: “I don’t think any one has every asked that before.”

I'll let you know if the petition for rehearing is accepted.