Marina Safeway Challenge Narrows as Developer Leaves Federal Suit

Stu Gross, a lawyer for the plaintiffs, said his clients had always planned to amend and refine their claims after city planners acted, according to the report. He said a normal legal challenge is usually timed for after approval, but the city’s reliance on AB 2011 streamlining led to an earlier filing. Gross described that sequence as a reason the first complaint included a broad set of claims. [1]

The proposal calls for a 22-story building with 848 homes at the Marina Safeway site, according to the report. The ground floor is planned to include a Safeway of 63,000 square feet, more than 20,000 square feet beyond the existing store. Align is developing the project with Albertsons, which owns Safeway. The report says the tower would be taller than surrounding structures. [1]

Align used AB 2011 last year to secure approval for the 848-unit project without a public hearing, the report states. The plaintiffs now argue that the existing Safeway building, constructed in 1959, has carried a listing on the Register of Historical Resources since 2015. In their view, that status would make the fast-track route unavailable. [1]

The city’s approval letter said the property was found ineligible for the Register in 2015 and again in 2020, according to the report. Gross said the city has not completed a formal process to remove the site from the list. Align’s attorneys disagree; they wrote to planners on Oct. 27 that the building had never been listed. [1]

The report states that the 2015 review followed a Verizon rooftop antenna proposal and ended without an eligibility finding after the state missed its response deadline. A second review in 2020 concluded the building did not qualify, and the state concurred, according to the report. The amended complaint drops a California Environmental Quality Act claim, though it continues to seek invalidation of the city’s approval. State law required the CEQA challenge to name the developer, which explains why Align was initially included, according to Gross. [1]

PG&E, which formerly owned the site, still faces claims that are largely unchanged, the report states. The plaintiffs still seek an investigation and cleanup of contamination under the property, where PG&E once operated a steam plant. Before filing the amendment, the plaintiffs twice failed in efforts to move the case to U.S. District Court Judge William H. Orrick, according to the report. Gross said the requests were a formality because Orrick had handled two matters concerning PG&E and contamination at the North Beach Manufactured Gas Plant. Federal court rules call for parties to notify the court when a suit may relate to another case in the district, the report states. [1]

U.S. District Court Judge Araceli Martínez-Olguín now has the case, according to the report. She is a former civil rights attorney appointed in 2023 by President Joe Biden. Gross called Orrick a strong judge in whose court the plaintiffs have had success, while saying the current judge is also capable. The report does not state when Martínez-Olguín will rule on the remaining claims. [1]

Removing Align alters the procedural target of the litigation without ending the challenge to the approval, according to the report. The plaintiffs still seek to invalidate the city’s decision. San Francisco must defend its approval, and PG&E remains exposed to the contamination claims. Align says it can move ahead with permitting and construction because it is no longer named. The report does not state that any permit has been issued or that construction has begun. [1]

Balducci said lawsuits of this kind contribute to California’s housing shortage, according to the report. He said Align had been removed from the case and was advancing 848 homes plus a grocery store that he said the Marina badly needs. The report also notes that the city approved the project despite neighborhood opposition. [1]

Gross said the central issue is how the law applies, according to the report. He said that if the law requires the project to move forward as proposed, then it should; but he maintained that the law has not been applied correctly so far. Those comments frame the dispute as a legal question about approval standards, not a claim that either side has already won. [1]

The report presents the removal as a procedural change, not a resolution. The plaintiffs’ request to void the city’s approval remains pending, and the city remains a defendant. PG&E remains a defendant on claims that it should address contamination beneath the site, where it once ran a steam plant. Align says it can proceed with permitting and construction because it is no longer named. [1]

Several procedural questions remain open. Will Align ask the court to intervene? Will the plaintiffs seek an order blocking San Francisco from issuing permits, and can they make the required showing of likely success and irreparable harm? Will the court void the city’s approval or allow it to stand? These are possibilities, not settled outcomes. [1]

The historical-resource dispute is also unresolved. Will a court accept the city’s position that the building was found ineligible in 2015 and 2020? Or will it agree with the plaintiffs that the site has been listed since 2015 and that the city has not formally removed it? The report presents conflicting accounts from the city’s approval letter, Gross and Align’s attorneys without saying how a court will resolve them. [1]

Contamination questions remain. Will a court require a complete contamination study before construction proceeds? Will PG&E be ordered to investigate and clean up contamination beneath the former steam plant site? The report says the plaintiffs seek investigation and cleanup by PG&E and that the utility claims are largely unchanged; it does not predict the outcome. [1]

The case’s assignment could also matter. Will it remain before Martínez-Olguín, or will the plaintiffs try again to move it to Orrick? The report says the plaintiffs twice made unsuccessful attempts to move the case and that Gross called the requests a formality. It does not state whether another request will follow. [1]

Timing is another open question. The report does not state when Martínez-Olguín will rule on the remaining claims, whether Align will seek to intervene, or whether the plaintiffs will ask again to reassign the case. It also does not say whether the plaintiffs will seek a court order blocking San Francisco from issuing permits, or whether they could meet the required showing. Those matters are described as possibilities, not outcomes. [1]

The next visible steps include whether Align seeks to intervene, whether the plaintiffs move to block city permits, and how the court handles the claims against San Francisco and PG&E, according to the report. Also relevant is whether permitting or construction proceeds while the litigation continues. Align says the removal lets it pursue permits and construction; the plaintiffs continue to seek invalidation of the approval. The report does not state when the court will act on any of these issues. [1]

The historic-status conflict and the contamination claims are likely to remain central because they underpin the amended complaint, according to the report. The report does not say whether the court will require a complete contamination study or how it will treat the 2015 and 2020 eligibility findings. It also does not state whether Align will seek to intervene or whether the plaintiffs will make another reassignment request. Those are questions to watch, not forecast outcomes. [1]

The report also does not state whether the city has issued any permit since the amendment or whether Align has begun construction. Those facts would bear on the practical effect of the removal. The plaintiffs’ request to void the approval and the contamination claims against PG&E remain pending. The historic-resource dispute could affect whether AB 2011 applies, but the report does not predict how a court will resolve it. [1]

Sources

The San Francisco Standard

Prepared with AI assistance from the cited sources.