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A charter amendment adopted 20 years ago to prevent developers from getting their hands on city-owned parks may stand in the way of city council's acceptance of Ron Cowan's scheme to swap commercial land on North Loop Road for the Mif Albright par-three golf course.

That amendment, now section 22-12 of the City Charter, prohibits the sale of public parks without approval by the electorate. And the measure specifi cally states that "public parks" includes the Chuck Corica Golf Complex.

The only arguably applicable exception to the outright ban is a provision entitling council to exchange existing parkland for a new public park if it determines that the new park "is of comparable size and utility and serves the same service area with substantially the same amenities."

Presumably, Cowan is relying on this exception as the underpinning for council's authority to cut a deal to trade the Mif for undeveloped commercial property. But that argument fl ies only if council determines that vacant scrubland on which youth soccer or softball fi elds not readily accessible to West Enders might be built is equivalent to an operating golf course that has served residents of all ages for 30 years.

Language and legislative history would guide a court in interpreting the Charter amendment. Its words suggest that the prohibition is intended to be broad and the exception narrow. So does the legislative history.

In summer 1991 the city was facing a fi scal crisis — and eyes at city hall turned toward the golf complex.

The newest fi nance committee member, an executive with Cowan's Doric Development, proposed selling 10 acres of golf-course land to raise money for the general fund and building a par-three course atop Mt. Trashmore. A few months later, another member suggested selling the Mif to put $4 million into the city's coffers.

Confronted by more than 100 irate citizens, the fi nance committee consigned these proposals to the garbage heap. But Councilman Lil Arnerich wasn't so sure the golf courses were safe. He asked city staff to research whether existing law prohibited the sale of city parks, including the golf courses. When he was told that it did not, Arnerich decided to draft a "park preservation" amendment to the City Charter.

In January 1992, Arnerich urged the city council to pass a resolution putting what became section 22-12 on the June ballot. Alluding to the recent fi nance committee brainstorms, Arnerich argued, "There are a lot of greedy people out there that want to get their hands on public properties."

After Mayor Bill Withrow left the meeting in mid-discussion, the city council deadlocked 2-2 and put the matter over for two weeks. Once again, Arnerich made the intent of the measure clear. "I'm deeply committed to seeing that these properties don't end up in the hands of developers," he said.

It was up to Mayor Withrow. Having earlier decried the cost of a ballot measure, Withrow now likened it to an insurance policy and voted in its favor.

At the June election, the voters overwhelmingly approved the charter amendment.

None of the contemporaneous accounts contains any statements by councilmembers implying that the exception was intended to swallow the rule. But one speaker, Dan Roberts, warned that it later might be portrayed as a "loophole" permitting council to sell parkland without voter approval.

Roberts has turned out to be prescient. If council is inclined to rubberstamp Cowan's plan, at least it should get a legal opinion from Cowan's counsel that voter approval is not required. Better yet, it should insist on indemnity and liquidated damages from Cowan himself in the event a judge later fi nds it acted illegally.

Roberts Sullwold is an Alameda resident.