Monday March 15, 2004    Volume 4    Issue 222

Holy Hellman, Robin!
Judge throws brakes on parking garage in Golden Gate Park
Michael Yaki got too clever writing law

by savannah blackwell

Monday, March 15, 2004

Warren Hellman, the heir to the Wells Fargo fortune, is accustomed to getting his way.

That was evident when the reserved, unassuming man with the deep pockets and the big political pull headed out of room 301 of the Superior Court building fuming shortly after Judge Kevin McCarthy ruled against him and other backers of the M.H. de Young Memorial Museum, as well as the City and County of San Francisco when McCarthy granted activists' requests to slap an injunction on efforts to build a 800-space underground parking garage under the Music Concourse in Golden Gate Park.

Unless McCarthy's decision can be overturned by another judge -- and that's not clear yet -- Hellman's going to have to raise another $25 million from private donors to build the roughly $60 million garage -- or else jeopardize the ability of the de Young to open the doors of its new $200 million structure as planned in 2005. The design of the de Young currently relies on access to the garage to meet fire safety standards.

Museum officials have long argued the garage must be built for other reasons as well. Museum Director Harry Parker has said the structure is needed to get around the problem that attendance on Sundays usually drops when the eastern segment of JFK Drive is closed to car traffic. Without the ability to draw lots of visitors on weekends, Parker has said the de Young would not qualify to host blockbuster exhibitions.

"We are not sure what's going to happen next, but we are weighing all of our options," Carolyn Macmillan, who handles press for the Fine Arts Museums of San Francisco (which includes the de Young and the California Palace of the Legion of Honor), told the Sentinel. "We're disappointed. And it's unfortunate, because (the new museum) will be a great gift to the community. And it is the public that will miss out."

But if there's anyone Hellman should blame, it's not Katherine Roberts, the bicycle activist who, along with others upset that the garage will ruin the historic Music Concourse, sought the injunction earlier this month.

No, what tripped Hellman up was the carefully crafted language of Proposition J -- the 1998 initiative that authorized construction of the garage. And the text's author was Michael Yaki, the former member of the Board of Supervisors. Yaki, a graduate of Yale Law School, was a loyal foot soldier of Willie Brown whom voters dumped at the polls in November 2000 -- along with most of the former mayor's cronies on the board. To sell the initiative to voters, Yaki was careful to spell out and make air-tight (according to his own description at the time) language specifying that no public money -- only private donations -- could be used to build the garage.

"The underground parking facility shall be constructed entirely with funds received through one or more philanthropic donations," the measure says.

And therein lies Hellman's problem.

Despite promising the public in 1998 that all funding for the garage would come from private sources, he has refused to raise more than $36 million for construction -- even though the project's total cost, including fees for architects and other professional consultants, is at least $50 million.

So city officials signed off on a deal last December to lease the garage to a private non-profit Hellman created called the Music Concourse Community Partnership for 35 years. That deal also calls for the Association of Bay Area Governments (ABAG) to issue, on behalf of the MCCP, $54 million in revenue bonds to pay for the garage's construction using the $36 million in private donations Hellman has raised as leverage. Fees paid by motorists who park in the garage would be used to pay down the cost of the bonds.

However, the City Charter clearly states that if an underground garage is built on city-owned parkland, all parking fees the structure generates must go to the Recreation and Park department. Prop. J does not call for any change to that section of San Francisco law.

As hard as attorneys from the powerhouse firm of Keker and Van Nest and the offices of Ellman Burke Hoffman & Johnson and City Attorney Dennis Herrera tried, they could not convince the judge that until the garage is completed -- the fees from the structure are not the rightful property of the city. In essence, they were saying that there would be no fees generated in the first place were it not for the leveraging of private dollars.

McCarthy countered by pointing out that if the MCCP were not using ABAG to issue bonds to build the garage, then all fees from the garage would go to the city.

Hellman and the city's attorneys tried other approaches as well, including likening the situation to any in which a private outfit is located on public land.

"Your honor, the city leases its land at Fisherman Wharf to restaurants, and (the restaurants') net revenues are not different from money you give to buy food," Keker attorney Susan Harriman said.

The problem with Harriman's argument, Roberts' attorney Thomas Lippe pointed out, is that land at the port is not parkland, and the city charter is very specific about where revenue from a garage built under a park can go.

Even City Treasurer Susan Leal's attempt to sell the deal as a great boon to San Francisco didn't fly.

"This means these private funds are being leveraged further so the city gets the benefit of all that financing," Leal said.

"I understand the public policy point. I understand the compelling nature (of your arguments)," McCarthy said. "But these are not the questions I have to deal with. The question is whether this financing approach is consistent with the language of Proposition J. And I really think the governing language is that the garage should be constructed 'entirely with funds received through one or more philanthropic donations.' Maybe it should have been drafted in a different way."

Yes, maybe it should have been written differently. But the unusual nature of the measure can be attributed to Yaki's efforts to match the political will of the voters, who, by 1998 had made it clear they wouldn't support spending public money on a parking garage in Golden Gate Park.

In 1996, voters gave the thumbs down to a $73 million general obligation bond to rebuild the de Young, which was damaged in the 1989 Loma Prieta Earthquake, and construct a garage smaller than the one currently planned.

When Yaki shopped the 1998 measure around town -- including at the editorial offices of the San Francisco Bay Guardian -- he was pleased to point out that he had made sure the public would not have to pay a dime for the garage.

Polls had suggested voters would be willing to support public bonds to build a new de Young Museum if the plans did not include a garage that they would have to pay for as well. Ironically, Proposition A, the companion measure to Prop. J on the June 1998 ballot that would have provided public bonds for construction of a new de Young, did not garner the two-thirds approval required. Prop. J, however, passed with 57 percent of the vote.

Since then, Dede Wilsey, the widow of millionaire Alfred Wilsey, has raised enough private money to pay for the new de Young, and construction is well underway. Unless the museum's backers can figure out a way to get McCarthy's decision overturned, Hellman will have to go back hat in hand to the philanthropic community to pay for the garage. And trouble is, a lot of donors have already ponied up for the museum. Or else, as folks on both sides of the battle have pointed out, he'll have to suck it up and come up with the dough himself.

As one garage supporter who asked not to be named told the Sentinel, "I can't believe he'd want the city to be a laughing stock because we've got a brand new museum and no way to open it. Surely we'll get past this."

McCarthy also turned down the city and MCCP's request that Roberts be forced to put up a $6 million bond to cover lost revenues should she lose in court. He also ruled that the project's current design, which includes one entrance inside the park, does not comply with Prop. J. The measure called for an entrance to be located outside of the park so as to decrease traffic congestion inside one of the city's most beloved assets.

Savannah Blackwell is a political writer for
Email Savannah Blackwell at

© 2004      Used with permission.