Judge Will Consider Lifting Bike Injunction at Hearing Next Month

4589862127_f9053f8539.jpgBrand new green bike lanes on Market Street, one of the "innovative treatments" Judge Busch allowed under the partial lifting of the bike Injunction. The city hopes to get the green light on its full Bike Plan next month. Photo: Bryan Goebel

It’s been nearly four years since a court injunction stopped virtually any bike improvements from moving forward in San Francisco, but now a date has been set for a hearing that could fully and finally lift it.

On June 22, Superior Court Judge Peter J. Busch will consider the arguments of the City Attorney’s office in support of lifting the injunction, as well as opposition from Mary Miles, the attorney for Bike Plan opponent Rob Anderson. While the city got partial relief from the injunction last November, setting off a flurry of bike upgrades including new on-street bike corrals, sharrows, some new bike lanes, and fully-separated green bike lanes on a stretch of Market Street, the majority of the city’s 45-plus planned bike lane projects are still blocked.

The lack of an environmental review document for the Bike Plan led the court to order the injunction in the first place in 2006, after Anderson sued the city, arguing that additional bike lanes would slow traffic and increase pollution from idling vehicles.

The City Attorney’s office and bicycle advocates had hoped to see the injunction lifted at a November hearing, since the city had finally completed an exhaustive and expensive FEIR, which was certified by the Board of Supervisors last summer.

But Miles persuaded the judge that the injunction shouldn’t be fully lifted until her challenge to the adequacy of the FEIR is heard, so the city’s bicycle riders will have to wait until next month for another shot at lifting the ban.

The City Attorney’s office is evidently ready for the hearing: Yesterday, it sent over to Judge Busch a point-by-point response [PDF] to Miles’ objections to the FEIR.

"Petitioners take issue with virtually every aspect of the Bicycle Plan EIR and the City process for approving it," the response’s argument begins. "But … substantial evidence supports the City’s decision to certify the EIR as adequate, accurate and in compliance with [the California Environmental Quality Act.]"

It goes on to address Miles’ arguments, including her contentions that the FEIR is "not accurate, stable, finite, or legally sufficient," that it doesn’t accurately describe baseline conditions, that it doesn’t adequately analyze impacts to the city, that it didn’t consider a reasonable range of alternatives to bike upgrades, and the that public wasn’t sufficiently involved in the review process.

The hearing is set for June 22 at 9:30 a.m. in Dept. 301 at the San Francisco Superior Court Building, 400 McAllister Street.

  • Let’s not party too hard if the injunction is lifted; as long as CEQA is on the books there will still be millions of dollars and years of wasted time going down the drain on every significant future project

  • Thanks for this update!

  • marcos

    No, the millions of dollars are being wasted in producing the replacement standard for LOS.

    That project, Auto Trips Generated standard, began as a twinkle in the Transportation Authority’s eyes in 2002 and has yet to be completed in mid 2010.

    May I remind the reader that it took 18 months to build the world’s largest office building at the time, The Pentagon, and only 4.5 years to defeat the entirety of Nazi Germany and Imperial Japan?

    In 1961, JFK called for landing a man on the moon and by 1969 it was done. Yet the production of a relatively simple replacement CEQA standard by city bureaucrats can’t be finished by the end of the decade. If we can send one bureaucrat to the moon, why can’t we send them all to the moon for taking so long to take steps to make cycling safer while cyclists face injury and death on the mean streets?

    We’re paying these people very good money, yet we’re not seeing productivity in real time.

    The error made in 2004 was to put forth a grand package of bicycle projects. This decision opened the door to claims on a cumulative EIR. Any individual bike facility proposal taken alone would have required a simple project level environmental review and thus been less exposed to a legal challenge.

    CEQA has seen social impacts shoehorned into environmental review analysis because there is no place in the law where the social impacts of a project must be considered formally. I’d like to see San Francisco devise a SFSQA, San Francisco Social Quality Act, that tracks CEQA in process but explicitly calls for analysis of the social impacts of a project and the presentation of mitigation measures to decison makers, who would certify impacts and/or mitigations, leaving CEQA to handle the true environmental impacts.

    -marc

  • Jake

    @SteveS:
    Keep saying what you’re saying, as often as you can. I still feel that much of the progressive community doesn’t understand in its bones that CEQA, as it currently exists, is the biggest impediment to building the world we need (livable streets, dense urban infill development, etc). Obviously you understand it, and maybe a lot of the SF pro-bike community understands it now because of what happened with the Bike Plan. I understand it because I worked in nonprofit affordable housing development, where CEQA is perhaps the biggest obstacle to what we all say that we want (green building/urban infill/affordable housing/mixed use/transit adjacent/etc/etc). But a lot of others simply can’t entertain the thought of doing more than just tweaking CEQA.

    How about this? Complete, total statutory exemption from CEQA for any bike or ped infrastructure project. Remember, people, we still have representative democracy: local city councils and board of supervisors could still make the decisions. We CANNOT waste many more years fiddling around with EIRs for every bike improvement we want to make.

    Most places in America, when they are crafting bike plans, don’t have to spend years and hundreds of thousands of dollars to create a study showing that — gasp! — urban bike riding is environmentally beneficial.

  • Jake – Categorical exemption from CEQA for bike/ped projects is a terrible idea. With a project as “simple” as a municipal bike path, just off the top of my head, I can think of situations involving soil toxicity, endangered animals, native american burials, and water/erosion that could all create significant negative impacts, any of which would end up costing the lead agency sums of money that dwarf the cost of preparing an EIR.

    We need to streamline the process and there are some ares where CEQA should be changed, but it remains one of the best public protections against rampant, unsustainable, and unhealthy development.

  • marcos

    The thinking is that the LOS standard would be replaced with the ATG standard, not that bike lanes should be given a categorical exemption from all CEQA impacts.

    ATG would not obviate the application of any other appropriate CEQA standards. The thinking was that LOS impacts from removing auto lanes for bike or transit lanes would not be considered an impact under proposed standards, but MEA’s crack CEQA staff and the City Attorney take the conservative approach that there has to be some standard to replace a bogus one.

    Would that cyclists and transit riders all queers seeking same sex marriage. That would have garnered Herrera’s attention. Scratch that, we’ve essentially come to the same place over 9 years on CEQA/LOS that Herrera and Newsom brought us with their “auto da fe” in 2004 that was the legal instigation of Prop 8.

    CEQA already exempts the striping of bike lanes (See CEQA guidelines 15304. MINOR ALTERATIONS TO LAND: (h) The creation of bicycle lanes on existing rights-of-way.).

    The CEQA impacts lie in what happens after the lanes are striped on the rest of the roadway or on adjacent roadways is evaluated against the incumbent LOS standard.

    The Miles lawsuit revealed that the MTA had not adequately studied up the impacts that the removal of auto lanes for bike lanes would have on the Muni. Granted, the methodology is antediluvian and imprecise, but the MTA would have had to have waited until the lanes were striped until it might have at some point realized that the Muni was being slowed down.

    That is a legitimate environmental impact, measured by how degraded LOS impacts transit, that should be preserved. ATG will not capture degradation of transit speeds.

    Bicycle lanes are marginal improvements to bicycle safety. The big bang for the buck comes in making Muni more attractive to motorists so that they abandon their cars for transit, which leaves fewer autos on the roads to get in the way of cycling.

    When the clash is between Muni and bicycles, bikes must lose the battle, take a tactical retreat, so that bikes can ultimately win the war.

    -marc

  • Jake

    @SF Resident,

    Re: “I can think of situations involving soil toxicity, endangered animals, native american burials, and water/erosion that could all create significant negative impacts.”

    I’m trying to imagine how painting a bike lane or adding a curb (for a cycle track) on an existing street, or adding a bike rack to an existing sidewalk, could possibly churn up toxic soil that isn’t already paved over, endanger animals that aren’t already endangered, lead to digging up Native American graves that aren’t already dug up, or worsen the amount of water running off the existing pavement. But I can’t. What am I missing?

    There is no jurisdiction in the world where it is easier than California for a crank with some money for a lawsuit and a sympathetic judge to sabotage a democratic planning process, and the reason is CEQA.

    Either we get serious about reforming our dysfunctional planning system — with CEQA at the top of the list — or we retain our cherished “process” and spend decades accomplishing what Amsterdam and Copenhagen and Portland and New York City can get done in a year. But not both. Sorry, we have to make choices.

  • Jake

    @Marcos,

    I am all for the ATG standard, but it is still bailing wire and sealing wax applied to a fatally flawed process (at least with respect to bicycle infrastructure). Why? Because ATG is just a new methodology that is replacing the old LOS methodology within the CEQA framework. Everything about it can still be endlessly challenged in court.

    If bike improvements were completely exempted from CEQA, there would be nothing stopping progressive jurisdictions like SF from using ATG or other appropriate methodologies to study important things like the impacts of bike improvements on Muni service. The difference would be that the Board of Supes/MTA Board could, after duly considering planning staff recommendations and weighing the various arguments, make a decision AND THEN NOT WORRY ABOUT THE CITY GETTING SUED. (Isn’t that how democracy is supposed to work?)

    That’s the point — it’s not that the analysis done under CEQA is necessarily bad in all cases. It’s that CEQA is set up to give limitless opportunities to private citizens to sue to delay projects.

    Finally, I completely disagree with your argument that the way to improve biking is to improve transit to the point where car traffic is thinned out. That is like waiting for Godot. Improving transit requires finding millions of extra dollars for operating costs that we don’t have, reforming union work rules, changing people’s attitudes about transit, and I dunno, reforming Prop 13? Good luck with all of that. Seriously, these are all worthwhile undertakings, but they are going to take years and years to effectuate, if they ever happen at all.

    It would be much simpler and much cheaper to install game-changing bike infrastructure improvements like cycle tracks and other kinds of physically separated bike lanes. Make it so that it is a physical impossibility for cars to menace bicycles in as many places as reasonably possible. This is what the world’s most successful biking cities have done. Look at the response that the green bike lanes and soft hit posts have generated on Market.

    But it’ll be very difficult to carry out these sorts of improvements under CEQA as currently constituted. CEQA punishes innovation and experimentation. It is a lawyer’s dream and a designer’s nightmare.

  • Shawn Allen

    Jake,

    One important point: The Bike Plan wasn’t exactly developed through a “democratic planning process”. It was worked on behind closed doors for years, then rushed to approval without an EIR or very much public input at all. This, I think, is the reason that people like Rob Anderson feel so slighted by the city, and it’s a problem that hasn’t been addressed in the last 5 years of litigation.

    Granted, the planning process in this city is pretty dysfunctional, so I can understand why the powers that be would want to avoid the collective hand-wringing and bitter arguments that accompany project approval. But it’s pretty obvious to me at this point that we would have been much better served by a healthy debate about specific projects over the last 5 years than this bitter battle in which people vastly oversimplify the affects of bicycle infrastructure on automotive traffic and public transit.

    I agree, though, that CEQA needs to be fixed. Does anyone know if progress was made on those LOS reforms that we last heard about over 6 months ago?

  • marcos

    Jake,

    “That’s the point — it’s not that the analysis done under CEQA is necessarily bad in all cases. It’s that CEQA is set up to give limitless opportunities to private citizens to sue to delay projects. ”

    No, CEQA has clear limits. Yes, CEQA has all sorts of unintended side effects, but that said, so do the projects that in your opinion CEQA delays.

    CEQA is not the barrier to a bicycle paradise, a 19th century revenue system and an aging entitled boomer population are.

    The 2004 Bicycle Plan Revision was a disaster from a process standpoint. The proposed projects were the ones that survived the public process, as it were, and came out on the other end. But the City was relieved of half a million dollars that went to the SFBC and consultants. This is where the conflict of interest originated.

    We live in a democracy, and in environments with scarce resources, streetscape and finances, contention for those resources is going to take place in the political arena. There are no “academically correct” answers to how we divide scarce resources. Only when the voices of all stakeholders are meaningfully represented in a public process will we see outcomes that mirror democratically expressed desires.

    Given the crap that CEQA has prevented, the bad sides of it are worth keeping around. That said, I’d prefer to see social impacts analyzed alongside with environmental impacts, because these are important, but never the twain shall meet.

    With the gulf oil spew ongoing, it is time for a moment of humility to recognize that the precautionary principle is a good idea, that we should adequately and honestly assess the risks that a course of actions brings with, and make a dispassionate evaluation on whether to move forward or not.

    For instance, the cost to construct a new luxury high rise condo tower consumes more in resources than if those individuals purchased sprawl tract homes and commuted. Yet since money controls planning policy, these boondoggles are entitled left and right. In these cases, an informed CEQA analysis that took into account the full lifecycle costs of projects would do well to stop bogus projects like 555 Washington from ever seeing the light of day.

    -marc

  • @marcos CEQA itself is socially unjust, as luxury condo projects have access to the army of lawyers to spin and manipulate a cumbersome, bureaucratic report on a scale that more affordable projects simply do not. Sure, a few bad projects have been stopped, but how many good ones never even made it off the page, and how much money and effort was wasted putting together reports on good projects that did make it?

    Any system built around writing huge reports and having lengthy legal battles is inevitably going to have unintended consequences that outweigh its benefits. The goals of CEQA could be much better realized by simple taxes on carbon, parking spaces, etc., which would cause the market to develop better environmental solutions more quickly and at a lower cost.

  • And what about Newsom’s developer stimulus plan that dropped fees?

  • Nick

    Let’s look at all the positive things that have happened over the last 4 years. There are twice as many cyclists on the street. The SFBC doubled their membership. There has be a sea change in people’s attitude towards street space. There’s been real change on Market Street and more is coming.

    Just consider that over the last 4 years, over 20,000 cyclists in the City bike 10 miles a day or more and that’s 292 million miles biked in defiance of some footnote lawsuit.

  • The injunction has been in many ways a blessing in disguise. A great organizing tool that has helped pull the cycling advocacy community together, and helped it grow in numbers and political power. The delay has also allowed the SFMTA’s bike program to mature into a much more effective and innovative advocate for cycling’s place in the transportation mix. Things were moving, but slowly and often timidly, before. I think at the end of the day we’ll get more and better cycling infrastructure with the injunction’s help, than if we had kept slogging lane by lane.

    That said I’m hoping we’ll be done with it this year. Time to move forward!

  • marcos

    David, temporal proximity should not be confused with causality.

    The real story here is that more people began riding when new bicycling facilities were enjoined. Did they do this because they were outraged at the injunction? Probably not. The injunction has been in place long enough to see the bend in the changing arc of mass behavior.

    The question remains unanswered as to how the City is going to plan for bicycle infrastructure improvements in the future given the constraints exposed by this debacle.

    Hip hip horray, we might see the green light given soon to the bulk of a ten year old plan. We are ten years in the hole. Where is the public process to chart a course forward, or should we just wait for the experts to tell us what we’re going to get, what the technically best solutions are for allocating limited resources?

    -marc

  • And what I meant by my comment was, how can Newsom drop those fees in light of CEQA? Aren’t those fees in place to offset congestion and other impacts of the development?

  • marcos

    @Steve, I’m not going to defend the nuts and bolts of CEQA, guidelines and case law. It is twisted wreckage much of which has precious little to do with the environment.

    What I am going to defend is the need to investigate the environmental impacts of a project according to evolving standards of what constitute significant environmental impacts.

    Can you give some examples of how CEQA has shut down good projects? The Bike Plan does not count, as it is a massive plan that involves all sorts of cumulative traffic flow analysis, very uncharacteristic.

    Affordable housing projects are streamlined on CEQA, if memory serves. Most EIRs from consultants cost around $100,000. That is not prohibitive for any project > $10m.

    @mikesonn, the EIRs for areas where Newsom dropped those fees indicated a certain level of Muni degradation due to autos and transit rider burden in the new developments. In the interim, Muni service has been cut. To what extent do we need CEQA analysis of either the impact of those proposed units w/cars and riders on a slimmed down system or the impact of the cuts on the impacts of the new development plan?

    Newsom claimed that the pace of accumulation of fees was slow enough such that if they were deferred for 3 years, that wouldn’t matter, because it would take five years (or whatever) to accumulate enough money to break the first ground.

    Of course, the development fees only contribute 1/3 of the costs to pay for the impacts of the new development on infrastructure, leaving those of us who are receiving stellar city services now to pony up more tax dollars to fund lavish developments or to take a hit on the fantastic level of city services we’re receiving now.

    Late capitalism is not able to pay its own freight.

    -marc

  • @marcos Don’t have to go back far to find other livable streets projects killed by CEQA: just last month the Muni F line extension was tabled because the city could not come up with it’s share of the $2,000,000 needed to do their report!

  • marcos

    @Steve, Environmental review is a predictable expense in any project. The City has decided to privatize the production of EIRs instead of developing that capacity internally and is now realizing that there are no savings from doing that versus keeping that capacity in house.

    That gurgling sound you’re hearing is the sound of government small enough to drown in a bathtub.

    -marc

  • @marcos It doesn’t really matter whether you spent $2,000,000 on outside consultants or inside specialists; you still spent $2M of transit money on something which didn’t do anything to actually build the extension. I think it’s kind of funny to try to say that when government creates so much red tape that it can no longer comply with its own laws without private consultants that is an example of “small government.” I think it’s just an example of ineffective government, regardless of the size.

    The whole point we’re making is that no, CEQA-style EIRs (which, thanks to the poor state of CEQA don’t end up telling you much of anything about the true environmental impact of a project anyway) don’t have to be predictable costs; they are artificial costs imposed by the legislation. We can do better and exempt bike/transit/ped projects from them, or better yet just repeal CEQA altogether and replace it with a set of simple taxes and fees on design elements that produce negative externalities for the environment and which won’t requite thousands of dollars in consulting to comply with. Then we can take this $2,000,000 of taxpayer money and use it to build out the F line, instead of a pile of paper.

    I accept that there is a legitimate debate over whether we should have categorical exemptions, keep the requirements the same but massively reform the process, or just repeal and replace, but I don’t see any reason to defend the status quo

  • marcos

    @SteveS, it takes the better part of six months to let a contract for a consultant to do an EIR, delays which would not be part of the mix if the City had internal capacity for what we know we have to do. It is cheaper to use staff time for analysis than to pay a consultant.

    The world is too complex, 85%+ built out in SF, to just propose a schedule of fees and design elements, witness the bicycle plan and its impacts on Muni. The formulaic approach is being tried in planning areas, like Market/Octavia and Eastern Neighborhoods, but politically powerful development interests have managed to foist off the lion’s share of responsibility for subsidizing luxury condos onto the taxpayers. And nobody has bothered to reconcile a plan approved based on a certain level of Muni service against the cuts to that service. But at least we know the discrepancy and have a toehold for a lawsuit to protect the transit riding public from further service degradation.

    Sad to say, a Governor Reagan era environmental law is more ambitious than anything that today’s corrupt legislature would replace it with, and so-called forward thinkers are dismissing that law as too burdensome just as today’s libertarian republicans are cringing at the notion of zoning passed by the Republican legislature in the 1940s.

    At some point, we are going to have to study the impacts of projects, even if to assess fees and ensure compliance with design elements. Why not go the extra mile to flesh it all out?

    At this point, CEQA is a mess, but it is a politically intractable mess, too many constituencies are bought into the status quo that we’re not going to see any breakthrough. If we did not see project-friendly CEQA reform during the real estate bubble, its just not going to happen.

    We need to get government studying the full environmental impacts of all projects so that decision makers can know the consequences of their actions. As the Deepwater Horizon, which I assume passed NEPA review with corrupt flying colors, should be teaching us is that crappy environmental review that can be rigged and gamed is dangerous, and that we need sober, non-corrupt assessments of impacts with mitigations proposed that might stop projects that deserve to be stopped.

    If it weren’t for CEQA, California would look much more like Houston, and if it weren’t for Miles’ lawsuit, certain bike lanes would have delayed Muni, furthering its death spiral. That took complicated network analysis to ascertain, as it was not apparent on cursory analysis, and was trivial to mitigate once identified. Over time, how much money measured in time would delayed Muni have cost riders balanced against the cost of the EIR?

    In this case, no matter how much those who erred in muscling through the GRE, CEQA worked to protect the environment by putting the bicycle plan on hold so that it would not delay transit. Far from blaming Miles and Anderson, we should thank them for ensuring that the City followed the law.

    This idea that just because a process is expensive or those who exercise their constitutional right to seek redress in the courts have cooties according to the enlightened, that in order to take short cuts we should change the rules sounds to me like that kid who used to throw all of the pieces of the board game to the floor when he was losing.

    CEQA is not the reason why SF is ten years behind on bicycle projects, individuals, organizations, city staff and attorneys and electeds are responsible for this.

    http://www.nbcbayarea.com/around-town/real-estate/F-Market-Extension-to-Fort-Mason-Gets-Put-on-Backburner-92211649.html

    But for now, the plan could be stopped in its tracks (see what we did there?) because district Supervisor Michela Alioto-Pier thinks the whole thing has been poorly thought out.

    In her words, “The F-line project is kind of like a monster without a head right now.” Specifically, Alioto-Pier has concerns that an extension to Fort Mason would be a big neon sign for Marin commuters to park their cars in the Marina Green lot and increase car congestion for everyone else.

    To put action to talk, she’s requested that the county transportation authority “shelve” any further study of an F-line extension, and halt a $500k request from the SFMTA that the agency will need to finish an environmental impact report on the project.”

    $500K, not $2m, was withheld for political purposes, one process point of many where a district elected supervisor was able to represent her version of her districts’ interests to stop a project. I support the F line extension, however I’d not prioritize it over more important projects, such as the 22 Fillmore extension along 16th Street.

    -marc