SF Responds to Bike Injunction With 1,353 Page Enviro Review

Bike_Rider___Market_St.jpg
San Francisco’s Market Street.

Two-and-a-half years after a judge issued an injunction preventing the city from adding any new bicycle infrastructure to its streets, the San Francisco Municipal Transportation Agency (SFMTA) and the San Francisco Planning Department have released a 1353-page Draft Environmental Impact Report (DEIR) on the San Francisco Bicycle Plan. 

At a cost of more than $1 million, the city has attempted to demonstrate in excruciating detail what would seem to be obvious: better bicycle amenities contribute to increased cycling and an improved environment.

Despite the significant time and money required to produce the tome, Mayor Gavin Newsom struck an optimistic note, citing the proposed addition of 34 miles of bicycle lanes to San Francisco streets — a 75 percent increase over the existing 45 miles of lanes. 

“We’ve accomplished a great deal together, but much work remains to be done to improve the safety and convenience of bicycling,” said Newsom. “I will continue to push for a better bicycling environment as part of my deep commitment to improving the health of our environment, our residents and our city.”

A public hearing on the DEIR has been scheduled for January 8. The deadline for comments is January 13. 

While Rob Anderson, the plaintiff in the lawsuit that sparked the injunction, will surely continue his befuddlingly successful crusade (a couple of choice jeremiads from his blog: cyclists as a special interest wielding inordinate political power, and biking as a frivolous mode of transportation akin to skateboarding), the city assumes the DEIR will be sufficient to lift the injunction. 

“The Planning Department is confident that the DEIR fully satisfies the issues cited in the superior court’s injunction and will enable timely implementation of bicycle improvements that will enhance transportation alternatives in San Francisco,” said Planning Director John Rahaim.

What this means practically is a different matter. According to Andy Thornley, program director of the San Francisco Bicycle Coalition (SFBC), even if the DEIR is certified by spring and the Bicycle Plan goes before the MTA board shortly thereafter, the 60 projects outlined for immediate implementation likely won’t begin until the summer of 2009. 

“The Draft EIR is a very expensive bow-tie that we’re going to attach to the Bike Plan itself.  While it is a big deal, it shouldn’t be the only focus. The city needs to build out the Bike Plan as soon as possible."

The injunction held that the previous version of the Bicycle Plan had not received sufficient review under the California Environmental Quality Act (CEQA). The Bicycle Plan DEIR identifies some potentially significant impacts as defined by CEQA affecting traffic congestion, transit operating delays, and loading activities for some project options, particularly along portions of Second Street, Fifth Street, Cesar Chavez Street, Portola Avenue and Masonic Avenue.

Though the city took considerable heat over the summer for revealing at a Board of Supervisors hearing that it had fallen behind its own schedule for releasing the DEIR, the Planning Department delivered on its promise to release it by Thanksgiving. Both advocates and critics of the Bicycle Plan will have plenty to sift through over the long weekend (and likely through the new year).

Given the timeline of up to five years for completion of the 60 near-term projects in the Bicycle Plan, it is unclear whether Newsom, a likely candidate for governor in 2010, will realize significant bicycle improvements during his last term as mayor.

Photo: San Francisco Municipal Transportation Agency

  • Larry Littlefield

    This is where the EIS process becomes insane.

    Anderson merely has to file a lawsuit claiming th EIS is misleading or insufficient. I assume he has already decided to do so, without actually reading the document to see what it says, because that is irrelevant.

    And then, he just has to get an injunction, and then stall for as much time to prepare arguments, and counter-arguments, as possible. If after five years he is found to be wrong, it doesn’t matter — he isn’t held accoutable for the cost of his actions.

    I’m not sure the environmental review process is fixable without a different legal system — one that cannot be used to inflict harm by stalling and raising legal costs, regardless of the merit of the case.

  • Mike

    Larry – I see the Manhattan Institute is hosting (or just hosted) an event about changing the legal system to one where “loser pays” – the loser pays for the legal costs, losses etc due to the lawsuit. That might help?

  • Larry Littlefield

    “loser pays” – the loser pays for the legal costs, losses etc due to the lawsuit. That might help?”

    Maybe, but it might discourage legit lawsuits also. For their issue — liability — I think the real problem is joint and several liability. Ie. the guy who got drunk and fell off a ladder is 99% responsible for his injuries, but he has no money to pay himself. Surely the ladder company is 1% responsible, so it should have to pay damages and pain and suffering.

    The EIS has other structural problems:

    1. Existing conditions are grandfathered no matter how bad or unfair, which is pretty much across the political system.

    2. The automobile is assumed, so bike lanes don’t mean more bikes and fewer drives, but worse auto traffic, and dense development doesn’t mean more transit, walking and biking but even more auto traffic. The EIS process drives you to Frank Lloyd Wright’s “Broadacres City,” extreme suburbia with lots of pavement per person.

  • ben

    Yea I agree how can the automobile be a greater environmental cluster than it is already is especially by something which is taking infrastructure away from the current environmental cluster of automobiles?

    What we can never do away with the car because it will cause more pollution by those who still want to motor?

    I think it is a good system in theory, it has its problems.

  • gary fisher

    How on earth did he win that lawsuit? Did any transportation engineers or planner even testify at this case? Anyone who actually knows what they are talking about knows those arguments make no sense whatsoever.

  • MisterBadExample

    I surfed through the executive summary and glossary. I could be wrong, but it seems to me that in order to fight the report on any sort of substansive grounds, Rob Anderson would have to find a willing engineer and/or attorney conversant with these reports. I know that for many of us, the argument in support of a bicycle infrastructure plan as a means of environmental protection is on the level of a ‘rain makes things wet’ argument–those of us who support increased bicycle commuting would concur that it’s environmentally friendly enough to mitigate any adverse effects. But that’s the point–now that the city has gone through the trouble of creating an EIS, Anderson’s options for stopping the plan are going to have to focus on specifics of the plan.I don’t think a judge will be as likely to support one of his lawsuits now. Since this is a field of law that doesn’t pay very well, Anderson would have to find someone (pro bono) willing to go through the EIS and find ways to find a way to invalidate the IES. Unless Heritage foundation or AEI decided it has a dog in this fight, I don’t think he’ll be able to do so.

    I’m hopeful that the end results of this fight are 1) Rob Anderson has to find a new hobby-horse for his gadfly ways, and 2) Municipalities can cite or reference this work when going into litigation regarding their own efforts at creating bike-friendly amenities.

    Kudos to the leadership in San Fran for playing by the rules. I think in the long run this is better than trying to find a bike-friendly judge and throw Anderson’s lawsuit out.

  • Summer of 2009. For we SF cyclists who have been waiting for years for such simple things as f’ing bike racks the estimated date of ANY new improvements makes our blood boil. I try to take the longer view that this will eventually make it eaiser to implement bike infrastructure, but man, when you can’t even ride home from a Friday night out (let alone home from work) in a calm and dignified manner with your sweetie without feeling menaced by roaring SUVs and cranked up cab drivers…it’s depressing. So many cyclists in this city, so little infrastucture.

  • anonymouse

    To the good people of San Francisco I say: why wait for the city? Paint is cheap.

  • Nick from California

    The reason why Rob Anderson won the suit is because the California Environmental Quality Act (CEQA)’s criteria for measuring air pollution in EIR’s is based on Automobile Level of Service (LOS). The law is antiquated, because it states that if there are more cars moving freely, meaning LOS is higher, than there is less air pollution. This overlooks the environmental benefit of giving more space to bicyclists, which encourages more people to bicycle, less people driving, and therefore less air pollution.

  • Larry Littlefield

    “The reason why Rob Anderson won the suit is because the California Environmental Quality Act (CEQA)’s criteria for measuring air pollution in EIR’s is based on Automobile Level of Service (LOS).”

    It isn’t that simple in NYC, where if you get an injuction, it doesn’t matter if you win or lose. The goal is to stall. The court does not recognize that in the end, if the lawsuit fails, the court itself has inflicted harm.

    It isn’t just plantiffs who use this tactic. Lawsuit defendents stall in the hopes that plaintiffs will run out of money, even if they are in the right.

    I have no idea why this is allowed to go on.

  • Lee

    Maybe we could steal those tactics. Can we sue to stop any more automobile infrastructure from being approved? That can be the topic of the next review – how to make that possible and why it should be done.

  • “For we SF cyclists who have been waiting for years for such simple things as f’ing bike racks”

    Wow! I forgot how extreme this injunction was. Next thing you know, agencies will have to file an EIS to install park benches and trash receptacles.

    I also wonder if this prevented private installation of bicycle racks in the public ROW, like in front of a store for their customers?

  • “I also wonder if this prevented private installation of bicycle racks in the public ROW, like in front of a store for their customers?”

    I don’t believe so, nor did it block installation of new bike infrastructure associated with other specific development projects (as long as those projects all underwent their own environmental review).

    “Since this is a field of law that doesn’t pay very well, Anderson would have to find someone (pro bono) willing to go through the EIS and find ways to find a way to invalidate the IES.”

    Anderson has already found his soulmate in this fight, a lawyer named Mary Miles. http://online.wsj.com/public/article_print/SB121919354756955249.html

  • dave snyder

    The injunction is extreme because it was punitive: the specific crime according to the judge was segmentation of the plan. The city proposed to analyze each bike lane separately, when it would have concluded in almost every case that it was not a significant impact on the environment but in some cases that it was (according to existing law that considers car congestion bad for the environment). In the same manner the judge would have prevented an oil company from doing environmental analysis on just one oil well when they had a plan to install 100, the judge said, “you can’t analyze these one at a time you have to analyze the plan all at once and I’m so angry at you for trying to sneak this by that I’m going to prevent you from doing anything physical to the environment whatsoever in the meantime.” The judgement, frankly, was not bad. The law is bad. And the injunction is ridiculous. I don’t understand why our city Attorney, Dennis Herrera, who is acting like he wants to be Mayor, couldn’t prevent this from being so severe.

  • “I also wonder if this prevented private installation of bicycle racks in the public ROW, like in front of a store for their customers?”

    “I don’t believe so, nor did it block installation of new bike infrastructure associated with other specific development projects (as long as those projects all underwent their own environmental review).”

    It did. Only replacement racks could go in on public ROW. The only new racks that could be installed were on private property (a new grocery store put some in their parking lot). Oh, and I saw some new ones in GG Park recently. It really is that bad. And yet, there are so many more cyclists – imagine what it will be when we have decent infrastucture.

  • GGGGG

    Whereas, bicycling is a form of speech, political expression and public assembly; and the right to move is an essential aspect of liberty recognized from before the founding of our great City; and,

    Whereas, the City and County of San Francisco is under a continuing obligation to review the operation of its public works; and private property should not be taken, or damaged for public use without just compensation; and,

    Whereas, bicycling in San Francisco is in some places unduly hazardous; and the state-mandated City Bicycle Plan is intended to improve bicycle safety and transportation; and,

    Whereas, we the City Board of Supervisors have a right to protect the City’s people from harm and abate public nuisances; and San Francisco bicyclists, as encouraged roadway users, have a right to move in reasonable safety; and,

    Whereas, we the City Board of Supervisors have determined that bicyclists are continuing to be hit on City streets and that the record of such crashes, injuries and death shows substantial evidence of emergency; and,

    Whereas, the Bike Plan EIR has been repeatedly and unreasonably delayed; and there is no substantial evidence of a potentially significant impact caused by the Bike Plan; and now therefore, be it,

    Resolved, upon full inquiry, the San Francisco Board of Supervisors finds that the San Francisco Bicycle Plan will not have a significant impact upon the environment; and, be it,

    Resolved, the San Francisco Board of Supervisors further finds that the record of bicyclists injured and killed in crashes on City streets over the last two years shows substantial evidence of an emergency. And,

    Further resolved, that the Board of Supervisors requests that the City Attorney not oppose 3rd party intervention in this matter and that the City Attorney not oppose the recovery of the costs of such an action.

    Whereas keyed to facts and authority

    1) Whereas, bicycling is a form of speech, political expression and public assembly; and the right to move is an essential aspect of liberty recognized from before the founding of our great City;

    2) Whereas, the City and County of San Francisco is under a continuing obligation to review the operation of its public works; and private property should not be taken, or damaged for public use without just compensation;

    3) Whereas, bicycling in San Francisco is in some places unduly hazardous because of inadequate bicycle facilities; and the state-mandated City Bicycle Plan is intended to improve bicycle safety and transportation;

    4) Whereas, we the City Board of Supervisors have a right to protect our people from harm and abate public nuisances; and San Francisco bicyclists, as encouraged roadway users, have a right to move in reasonable safety;

    5) Whereas, we the City Board of Supervisors have determined that bicyclists are continuing to be hit on City streets and that the record of such crashes, injuries and death shows substantial evidence of emergency;

    6) Whereas, the Bike Plan EIR has been repeatedly and unreasonably delayed; and there is no substantial evidence of a potentially significant impact caused by the Bike Plan;

    7) Resolved, that upon full inquiry, the San Francisco Board of Supervisors finds that the San Francisco Bicycle Plan will not have a significant impact upon the environment;

    8) Resolved, upon full inquiry, the San Francisco Board of Supervisors further finds that the record of bicyclists injured and killed in crashes on City streets over the last two years shows substantial evidence of emergency;

    9) Further resolved, that the Board of Supervisors requests that the City Attorney not oppose 3rd party intervention in this matter and that the City Attorney not oppose the recovery of the costs of such an action.

    Facts and Authority

    1) Several commonly known facts support this assertion in San Francisco. The Bicycle Advisory Committee advises the Supervisors in matters of Bicycle transportation. Local private bicycle organizations are active in City politics. Bicyclists have assembled in mass in the City every last Friday of every month for more than ten years.

    The United States Supreme Court traces the right to move to the Magna Carta. Freedom of movement is basic in our scheme of values. “Outside of plainly harmful conduct every American is left to shape his own life as he thinks best, do what he pleases, go where he pleases.” (Kent v. Dulles (1958) 357 U.S. 116, 126). “The right [to move] finds no explicit mention in the constitution. The reason it has been suggested is that a right so elementary was conceived from the beginning” (Shapiro v. Thompson, 394 U.S. 618, 631).

    2) The California Supreme Court has directly linked a taking by inverse condemnation to harm caused by dangerous street designs. “Consequently, where property is involved, a public entity is under a continuing obligation to review the design of its public works in order to avoid liability. No insuperable additional burden is placed upon such an entity by extending this duty to cases of person injury” (Baldwin v. State (1972) 6 Cal.3d, 424, 438). “Private property may be taken or damaged for a public use only when just compensation, ascertained by a jury, unless waived, has first been paid to, or into court for, the owner” (Art. 1 §19, Cal. Const.)

    3) At Fell and Masonic streets and the Panhandle Bikeway, The Board of Supervisors found that “Collisions and near collisions between bicyclists, pedestrians and motorists occur almost regularly” (Fell/Masonic Resolution). The City Bike Plan is authorized and funded by Section 890 of the Streets and Highways code which reads in part: “It is the intent of the Legislature, in enacting this article, to establish a bicycle transportation system… [with] the physical safety of the bicyclist and bicyclist’s property as a major planning component.”

    4) Under the taking/inverse condemnation reasoning set forth in (2) the City has the responsibility to keep its streets reasonably safe. As such, the City also has the right to fulfill this responsibility. In California anything that “interfere[s] with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance” (Civil Code §3479). The California Constitution gives the City the police power to make and enforce local laws. “A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws” (Cal. Const., Article 11 § 7).

    Further, in a previous resolution, the Supervisors unanimously found that that “LOS…measures auto delay at intersections and ignores all transit, pedestrian and bicycle safety.” And the Supervisors resolved that “LOS analysis alone is not an appropriate metric for assessing environmental impacts and for analyzing projects that may improve overall environmental quality in conformance with Section 16.102 of the Charter” (Board of Supervisors Resolution no. 0233-06). Section 16.102 of the City Charter provides that “[d]ecisions regarding the use of limited street and sidewalk space shall encourage the use of public rights of way by pedestrians bicyclists and public transit and shall strive to reduce traffic and improve public health and safety” and that “[b]icycling shall be promoted by encouraging safe streets for riding.”

    5) In a recent hearing, the Land –Use Committee heard public comment from people who have been hit while the EIR/injunction stops safety improvements. Substantial evidence “means enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might be reached.” (Cal Beach Advocates v. City of Solana Beach (2002) 103 Cal. App. 4th 529, 536-537.) “Emergency means a sudden, unexpected occurrence, involving, a clear and imminent danger, demanding immediate action to prevent or mitigate loss of, or damage to, life, health property or other essential services. (Pub. Resources Code §21080, subd. (b)(4).) “Emergency includes such occurrences as fire, flood, earthquake or other soil or geologic movements as well as such occurrences as riot, accident or sabotage.” (Pub. Resources Code §21060.3.) Some ten years of City crash records and voluminous public comment indicates that bicycling In San Francisco is in some places unreasonably dangerous.

    6) The Bike Plan EIR has been delayed multiple times. Multiple City Supervisors and the Mayor have expressed concern over how long the “study” is taking to complete.

    7) No substantial evidence supports the assertion that the Bike Plan may have a significant impact on the environment. The City has a right to keep its people and its streets reasonably safe. Individual bicyclists have a right to speak and move freely.

    8) In, Running Fence v. Sonoma County the project sponsor intervened and sought a writ of prohibition to end the law-suit and injunction because the County Board of Supervisors found no substantial evidence of significant impact (Running Fence v. Sonoma County, (1975) 51 Cal. App.3d 400)

    MTA/Planning MEA letter,

    Request for substantial evidence of potentially significant impact.

    The Land-Use committee recently heard public testimony about the physical effect of the delayed Bike Plan on the City’s bicyclists. Numerous San Francisco bicyclists came to the hearing. Many of these people reported having been hit and sustained injuries wile riding their bicycles on City streets during the Bike plan EIR. Streets and Highways Code section 890, the statute which authorizes the Bicycle Plan, says the plan is intended to improve the safety of bicycle transportation. Finally, it has become clear, that the Bike Plan EIR has been repeatedly and unreasonably delayed.

    For these reasons, District 11 asks that the MTA/Planning MEA present any substantial evidence of a potentially significant environmental impact that the Bike Plan may have in writing before the full Board meeting of ____________. District 11 also asks that any substantial evidence of impact be presented at this meeting.

    Thanks,

  • The Draft EIR confirms our suspicions that the Bicycle Plan will indeed have a significant impact on the environment in the city. A number of proposed projects will, as the DEIR puts it, have a “significant unavoidable impact” that can’t be mitigated. The city and the bike people have been proven wrong both on the law and on the actual impact of the Bicycle Plan. Otherwise, hey, you folks got it just right.

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