By Savannah Blackwell

OFFICIALS FROM THE M.H. de Young Memorial Museum, the City and County of San Francisco, a nonprofit created by financier Warren Hellman, and activists fighting their plan to use revenue bonds to pay for the construction of an 800-space underground parking garage in the heart of Golden Gate Park are all anxiously awaiting a decision by Superior Court Judge James Warren. The future of Golden Gate Park – and of so-called public-private partnerships, which typically give control of public resources to private parties – could hang in the balance.

Warren is expected to determine by May 28 whether the joint plan of the city and the private nonprofit (called the Music Concourse Community Partnership) would allow the MCCP to use $54 million in revenue bonds to pay for the garage's construction, meets the terms of Proposition J, the measure approved by voters in 1998 that authorizes the facility's construction. He is also expected to decide if the garage's design passes legal muster.

"I think our arguments are very, very strong," Katherine Roberts, of Trees Not Cars, told us. Activists with the Alliance for Golden Gate Park have joined Roberts's group's legal complaint against the plan.

According to a lease agreement approved by the San Francisco Board of Supervisors in December, the MCCP would use private donations it has raised to leverage the bonds. The MCCP would own the garage for 35 years while parking fees would be used to pay off its debt. After that happens, the city would get any revenue generated by the garage.

Prop. J states that the garage "shall be constructed entirely with funds received through one or more philanthropic donations." The MCCP and the city argue that the bonds fit that description.

However, a review of arguments made in 1998 by three progressive activists who helped former Sup. Michael Yaki draft Prop. J strongly supports the opponents' position that the current plans violate the measure in two major ways: control has been ceded to the private MCCP, which does not operate under the city's Sunshine Ordinance, and fees from parking would not go immediately to the San Francisco Recreation and Park Department's coffers.

Former planning commissioner Dennis Antenore, Coleman Advocates for Children's Margaret Brodkin and school board member Jill Wynns made the arguments in an effort to convince the editorial board of the Bay Guardian that the proposition was a good idea. (The Bay Guardian ultimately opposed the measure.) In 1997 they had decided to cut a deal with museum officials and Hellman – one of the institution's most important financial backers – so that the museum would not be moved out of the park. (Museum director Harry Parker had proposed locating the museum downtown to get around the problem of low attendance rates on Sundays, when part of John F. Kennedy Drive is closed to cars.)

Antenore, Brodkin, and Wynns said the measure would create a new kind of public/private partnership in which a public entity (later named the Golden Gate Park Concourse Authority) would have total and complete control over all decisions affecting the garage and the music concourse area. They said that fees collected from the garage would go toward increasing public transportation to and within the park as well as other improvements in Golden Gate Park.

"The money will be donated to the public. No public financing will pay for it," Antenore told us in January 1998. "This is written into the ordinance, that any money generated from parking will go to public transportation." Antenore continued, "One hundred percent [of the revenue from the garage] has to go back to the park. It has to go for park-related use including transportation and recreation within the park."

Although the proposition does not specify where parking revenue should go, it stipulates that the garage's construction falls under a section of the City Charter pertaining to building garages under park property.

Roberts's attorney, Thomas Lippe, has argued that the section requires any revenues generated from such a facility to go directly to the Recreation and Park Department, but the MCCP and the city have said the requirement is only pertinent when the structure is approved by the Board of Supervisors – not by voters (see "Garage Offensive," 5/5/04).

Antenore, who has refused requests from representatives of both sides to speak in their favor, says it was his understanding that all fees would go to Rec and Park. (Both Brodkin and Wynns told us they still support the project.)

"I do remember that the money goes directly to Rec and Park," Antenore told the Bay Guardian this month. "That is what I was led to believe." Antenore also confirmed that the proposition did not envision the use of revenue bonds to pay for construction.

Support for Antenore's recollection can be found in a 1996 letter from park planner Deborah Lerner to an organization analyzing plans for a parking garage under the Music Concourse. (A smaller, publicly funded garage was included in a failed 1996 measure calling for use of general obligation bonds in funding the museum's construction.)

"Currently the new Charter Sec. 4.113(2) states that revenue derived from underground parking garages constructed in subsurface space under any public park shall be credited to Recreation and Park Department Funds," Lerner wrote.

Under the terms of the lease agreement, the city would receive some payments from a 25 percent tax on parking fees (estimated to be about $100,000 in 2005 and $1.7 million by 2033). That revenue would be split between Muni and the city's General Fund – another provision that violates the terms of Prop. J and the City Charter, Trees Not Cars says.

Although Antenore, Brodkin, and Wynns declared in 1998 that the public would have complete control over the implementation of Prop. J, the private MCCP and Hellman have been the driving force behind most of the major decisions. (An argument signed by the three activists is backed by a statement in the June 1998 voters' handbook: "Proposition J gives FULL PUBLIC CONTROL over the use of PRIVATE DONATIONS earmarked to revitalize the park.")

But the push to use revenue bonds and even the design has resulted from the preferences of private interests.

"It's a private entity running the show," John Rizzo, a concourse authority board member, told the Bay Guardian. "The MCCP makes the decisions and that is the bottom line."

Indeed, the concourse authority approved a more environmentally friendly design in 2002, but was forced to accept a lower budget, no-frills version because Hellman was either unwilling or unable to fund the plan preferred by the authority (see "Hellman's Hole," 2/05/03).

Trees Not Cars argues that the lease agreement illegally usurps public authority by violating a section of the City Charter that says the Board of Supervisors controls public parking-garage rates. The lease would force supervisors to sign off on requests from the MCCP to raise parking fees, the group says. The MCCP's attorneys have disputed that. However, comments made by deputy city attorney Michael Cohen to Budget Analyst Harvey Rose appear to support the garage foes' position.

"Mr. Cohen advises that if the MCCP requests and documents the need for parking rate changes in order to meet debt service requirements, the Board of Supervisors would be 'obligated' under the proposed lease to adopt a new schedule of rates," Rose's Nov. 5 report to the Finance and Audits Committee says.