The Legal Delays Continue in San Francisco’s Bike Injunction Saga

Rob_Anderson_and_Mary_Miles.jpgRob Anderson, the man who stopped San Francisco’s Bike Plan, and his attorney, Mary Miles, leave the courthouse after today’s hearing. Photo: Bryan Goebel

Without playing his hand, a San Francisco Superior Court judge today gave the attorneys involved in Rob Anderson’s lawsuit against San Francisco’s Bike Plan three weeks to draft orders for how he should proceed in the case, and any objections to those orders that might arise.

At the culmination of a nearly three-hour hearing that centered on four questions from the court, Judge Peter J. Busch asked the attorneys whether they thought the injunction against the Bike Plan should be fully lifted if he finds defects in the final environmental impact report (FEIR). Audrey Pearson, arguing for the City Attorney’s office, said that CEQA requires the court to tailor a remedy for specific problems he finds in the FEIR, while allowing other projects to move forward.

Busch was skeptical of that reasoning and said that if he determines any part of the FEIR is defective, then all of it is."The EIR wasn’t done project by project. That’s why we’re having this discussion in the first place."

He did, however, make it clear to the attorneys during their arguments that the issue before the court was not about the city’s Transit First policy. Some of attorney Mary Miles’ arguments had more to do with policy questions than the EIR itself, and many of her points have been made in previous hearings.

"There’s never been an EIR like this before. This is a strange project to prepare an EIR for," Busch said.

At one point, toward the end of the hearing, while Miles was railing against what she saw as the city’s lack of consideration for parking impacts in the Bike Plan, Busch shot down her suggestion that long-term bike projects were also in question.

"The court is not going to retain jurisdiction over any project having anything to do with bikes in perpetuity in the city of San Francisco. I can guarantee you that," he said, to a few chuckles from the courtroom audience.

The crux of Miles’ arguments had to do with whether the city abused its discretion by not properly analyzing the impacts of the Bike Plan and the alternatives to mitigate those impacts.

"We’re talking about impacts on transit, and traffic, and parking, and there’s no mitigation. It’s an egregious violation of CEQA," she said.

But Pearson maintained
the city did find measures that reduced the impacts "to a level of insignificance."

"One of the great things about the EIR is the breadth of alternatives the city looked at," said Pearson. "The city’s alternatives were well within the range…and did more than CEQA required."

Busch set July 6th as the date when attorneys should submit their proposed orders, and July 13th to file objections. He would then have 90 days to decide the case. Bicyclists and advocates are hoping Busch finally lifts the injunction so the SFMTA can fully implement the remaining projects in the Bike Plan.

Renée Rivera, the SFBC’s acting Executive Director, commended the City Attorney’s office, but was frustrated by another delay in a process that has dragged on for four years.

"I thought all of their arguments were compelling and I hope that the judge will find them to be compelling as well," she said. "I will say that I am disappointed the judge is taking this extra three weeks, until July 13th, to get the additional objections from either party. It sounds like he’s going to wait until that point until he starts fully considering his decision, so that was some disappointing news."

Anderson told SF Weekly that he would likely file an appeal when the injunction is lifted.

The saga continues.

  • marcos

    @Kyle, Anderson’s motives were gratuitous but the effect of his fixation was to shine the light on a legitimate environmental impact.

    -marc

  • Anderson writes… “That’s right. The issue at yesterday’s hearing—and what the judge’s decision will deal with—is the adequacy of the EIR.”

    Then why did your lawyer veer off that topic so much she had to be admonished by the judge?

  • Nick

    So if the judge decides the EIR is inadequate, what’s everyone’s next move?

  • marcos

    @Nick, the judge asked both parties to submit draft judgments for what the court would do if it found the EIR partially inadequate.

    That indicates to me that the court is not inclined to throw the baby out with the bath water and wants to find a middle ground.

    -marc

  • “Rob, when you privilege auto travel over cycling, you create the demand for more offshore drilling to reach the more remote petroleum reserves and thus contribute to the ecological catastrophe in the gulf.”

    Every time you turn on your computer you’re using some kind of fossil fuel, which now is the life-blood for our society. Creating traffic jams via the Bicycle Plan will cause more air pollution than the status quo does. And then there’s the emerging technology that will provide clean engines for cars. It will be interesting to hear the bikes-uber-alles when all our motor vehicles no longer use fossil fuel.

    “sorry to hear that you feel you are wasting your own time, Rob. I’m sure I speak for all of us when I say that I feel really bad about your bizarre compulsion to pursue gratuitous litigation and waste your city’s precious resources.”

    I’ve probably pointed this out a hundred times over the last five years to commenters on my blog, but I guess I have to say it again: it’s the city that wasted all that all our “precious resources”—time and money—by not simply following the law in the first place and doing an environmental study of the Bicycle Plan, which the law clearly required. Even when the City Attorney’s office gives the supervisors crappy legal advice and writes stupid briefs, they all continue to get paid with taxpayers’ money. If we don’t win, my lawyer doesn’t get paid at all. We didn’t pursue this litigation for political reasons; we think the Bicycle Plan is bad public policy.

    If the City Attorney was in private practice and performed like he has on this litigation, his clients would sue him for malpractice. The city pushed this litigation for purely political reasons. Once we got the original injunction way back in 2006, the city’s lawyers knew that they were going to lose the initial phase of the litigation and would have to do an EIR on the Plan. Herrera only continued to push the case because abandoning it would have caused a shit-storm of feedback from you bike people and all right-minded city progressives. And it would have made his getting elected Mayor of San Francisco unlkely.

    I’m not saying that my time was wasted by this process but only that it took up a lot more of my life than I expected.

    By the way, the auto-trips-generated proposal by Marcos to replace LOS hasn’t been enacted probably because the city’s traffic engineers and lawyers know that it wouldn’t withstand legal challenge. Here’s what ATG would do: if the city takes away a traffic lane to make a bike lane, that project itself wouldn’t generate additional auto trips. It would just screw up the existing motor traffic—including Muni, by the way—and thus would supposedly be environmentall benign. That of course is just sophistry. LOS, on the other hand, measures the time it takes traffic to move through intersections, the most reality-based way to study a project’s effects.

  • marcos

    @Rob Anderson wrote: ‘Creating traffic jams via the Bicycle Plan will cause more air pollution than the status quo does.’

    Substantial evidence based on increased emissions technology indicates that this statement is false. The SF Bay Area, according to the BAAQMD, has not had an air quality ‘hot spot’ for more than three decades.

    ‘it’s the city that wasted all that all our “precious resources”—time and money—by not simply following the law in the first place and doing an environmental study of the Bicycle Plan, which the law clearly required.’

    Yep.

    ‘If the City Attorney was in private practice and performed like he has on this litigation, his clients would sue him for malpractice.’

    Yep. It is truly astounding to see millions of our tax dollars wasted like this, defending the indefensible and doing the EIR anyway.

    The only reason why Anderson got any traction in this case is because Herrera’s shop really is that bad.

    Even if the City switches to ATG, it will still need to do LOS analysis to determine whether a project has impacts on the Muni. Local discretion exists to switch auto LOS to ATG, but there is no local discretion to avoid studying the impacts of projects on transit, which is required by state law and regulation.

    How many millions spent over 8 years on ATG when we need to do LOS for transit anyway?

    -marc

  • Actually, it’s unfair to say that the assistant City Attorneys that have handled the Bicycle Plan litigation have been incompetent, since they were essentially operating under the constraints of a politically motivated litigation. They were given an impossible job in the early stage of this litigation: make a credible defense of what was legally indefensible, the argument that the city was not obligated to do any kind of environmental review of a major project before implementing that project on city streets.

  • marcos

    The City Attorney misled clients by assuring them that they would prevail at every, getting their clocks cleaned, and then reassuring them that this was a temporary setback and that they would eventually prevail even though they were reluctant to establish an appeals court record of bad law.

    The CA should have been honest with clients, admitted that they’d made a mistake, folded tent and begun anew. Four years ago.

    -marc

  • Shawn Allen

    I’m with you on that last bit, Marcos. We wouldn’t be squabbling with Rob Anderson right now if the city had given up on this omnibus plan (or better yet, never bothered trying to push it through as one giant document in the first place) and started studying and implementing individual projects. NYC didn’t need a bike plan; they just started doing stuff, and look how far they’ve come in the last 4 years. We desperately need the success of individual projects both to help skeptics understand why this stuff is good and to instill some faith in people who choose to ride that the city even cares about them.

    I’ve found myself in a tough spot with all of this since I started trying to talk to Rob Anderson about it on his blog years ago. There’s no such thing as a constructive conversation with this guy because he assumes that we’re all just out there to selfishly “screw up traffic”, and he sees cyclists as practitioners of some sort of bizarre religion or groupthink. At the same time he fails to acknowledge the groupthink of motorists, and their equally ridiculous assumptions that fossil fuels will either remain as cheap and abundant as they are today, or that science will soon free us from our dependence on them. Unfortunately, as evidenced by the Deepwater Horizon disaster, we’re already so desperate for new sources of oil that we’re attempting to acquire it through increasingly risky means. And not only are electric cars essentially vaporware at this point, but we don’t even have the transmission infrastructure to support them yet. Not to mention the fact that people can’t generally afford new cars right now, or that it would be decades until a significant portion of existing automobiles would be replaced even if they could.

    What’s even more ridiculous, though, is how vociferously Rob dismisses the bicycle as even a partial solution to our problems of pollution and transportation efficiency. We’ve had bicycles for centuries, and even today they still beat automobiles in terms of efficiency for the vast majority of trips. Waiting for science to provide us with technology that helps us feel better about driving a giant metal box a couple of miles because it isn’t as bad for the environment is pure folly. Most of us can get around perfectly fine using our own two legs, and some of us can do much more. Bicycle manufacturers are creating all sorts of new designs and related technologies (like electric assist motors) that make cycling easier and safer for everyone. These exist today, and they’re much cheaper to adopt (even if just for a small portion of your trips) than replacing your car with a hybrid or plug-in electric.

    I see bicycling as very similar to recycling: We all know that it’s a good thing, and the city can provide infrastructure that encourages it and makes it easier to do; but ultimately the decision to participate rests with the individual. Without blue bins most of us probably wouldn’t bother to recycle because it would be a hassle. Similarly, many people are discouraged from cycling because they perceive it to be unsafe, they’ll get sweaty riding up hills and don’t have showers at work, or because they won’t be able to carry as much stuff around with them as they would in their car. All of these concerns are valid, and I wouldn’t expect most people to give up the conveniences of their cars to save the planet (though that doesn’t sound like a bad trade to me). We cannot deny, though, that getting out of our cars even just every once in a while has the potential to dramatically reduce our impact on the environment and our dependence on fossil fuels, and that the bicycle is a very good substitute for the majority of most people’s trips. The myriad other side effects of cycling (not limited to health, more personal interaction, and a greater sense of personal freedom) benefit both the individual and our community, and are compelling reasons for the city to better accommodate bikes.

    Clearly we still need to review individual projects, regardless of which road users they benefit most, and mitigate their negative impacts whenever feasible. But it’s lunacy to suggest that bike lanes are generally bad policy because they “screw up traffic”. As I’ve said before, Valencia Street is a shining example of what good bike infrastructure (in conjunction with traffic calming, signal timing, street resurfacing, and other improvements) can do to help turn a street that once catered exclusively to cars into one on which people feel more comfortable walking, biking, shopping, eating, and otherwise just enjoying themselves. Yes, as far as CEQA is concerned Valencia has likely suffered some “significant unavoidable impacts”. But the benefits to the neighborhood and everyone who now enjoys it far outweigh those impacts, and it’s impossible to argue that the street is not a better place now than it was a decade ago, thanks to its redesign.

    We need more streets like Valencia in this city that are not only nice places to hang out, but also serve as efficient transportation routes for cyclists. The more people that choose to ride a bike every once in a while the fewer cars there are on the road, the more room there is for people who rely on buses, and the better off traffic generally is for everyone. Vehicular traffic is surprisingly flexible, and in places where lanes may be taken away to provide room for bikes there may very well arise new, more functional arterials for motorists. In all of this talk of “impacts” we ignore the fact that people are adaptable and resilient, and that they will figure things out. It’s ridiculous to assume that people won’t change, and that a lane reconfiguration will necessarily result in a congested auto lane and an underutilized bike lane. Valencia, once again, is clear evidence to the contrary.

  • gibraltar

    ‘it’s the city that wasted all that all our “precious resources”‘

    And you helped it along a great deal. It shouldn’t have been hard to find another way to make our city better than to litigate against it. There are many other areas where the City is not doing what it ought to be doing. Do you plan on suing for all of these? If so, I’m looking forward to seeing Rob Anderson sue the City for not enforcing sidewalk parking laws.

  • maaaty

    Saudi proverb, amended:

    Our grandfathers rode camels.
    We ride in automobiles.
    Our grandchildren will ride camels, and those camels will bear bumper stickers that read, “Rob Anderson wore chainstore sweatpants marketed to teenagers and made in Chinese sweatshops.”

  • He’s just defending “car people” and “MUNI people” from selfish “bike people” (Rob’s term). Everyone should choose a group and resent the members of the other groups. I guess “foot people” are on the sidelines on this… and “helicopter parents” are above it all 😉

  • marcos

    Don’t blame Rob Anderson for the fact that bicycle advocates fucked up royally, misplaying their hand under a false sense of invulnerability.

    Your psychoanalysis would be more productive directed at those who so profoundly misjudged the legal terrain so as to coerce shortcuts for which we all got bitten.

    Anderson is correct: cycling IS dangerous in San Francisco. Even with the bike lane network built out, it is still going to be dangerous both on the network and especially on the other 95% of streets that are cycled but not on the network.

    Not only has the SFBC been caught advocating for the General Rule Exclusion which the court nixed, they have repeatedly–the better part of this past decade–refused to tackle the role of the SFPD in perpetuating danger in their practice of promoting their suburban mindset in the application of the CVC in SF.

    Since cycling is dangerous, DPH injury, death and collision data should drive both the provision of new bicycle facilities as well as the allocation of scarce SFPD enforcement resources. Wherever there is a health threat based on the data, the evidence, then the City’s attentions should be triaged there first and a safety based feedback loop established to direct future interventions.

    -marc

  • I must protest Marcos’ inconsistent scale of accountability here.

    On the one hand, we’re encouraged to blame the SFBC for all consequences of all bad decisions made by the City. Why the crucifixion of a party not named in the injunction? Because SFBC played an indirect role in devising a failed City strategy to better protect San Francisco bicyclists.

    On the other hand, we’re encouraged not to blame Rob Anderson for all of the direct and foreseeable consequences of the obstructionist lawsuit he personally filed out of animus against “ignorant bike people.” Why the absolution of the named party for whom the injunction was granted? Because Marcos’ is gunning for the SFBC and on that crusade, Anderson is his comrade-in-arms.

  • marcos

    @greasybear, I’ve spoken with the decisionmakers who were in office at the time who told be about being pressured by the SFBC executive staff as well as other highly placed sources who indicate to me that your knee jerk defense of the SFBC in this instance in particular is ill placed.

    I was there, you were not.

    -marc

  • marcos

    @greasybear, if you’d like, you can head over to the Superior Court to read the record of trial where there are emails which confirm the charges I’ve raised, that the SFBC was the driving force behind applying political pressure to sway the decision by MEA staff to choose a route other than a General Rule Exclusion.

    You can read the SFBC’s endless breathless pronouncements, echoed in this blog as well as the Guardian, as to how the bike injunction was going to end with the hearing in Superior Court on the ___ day of ________, 20__.

    -marc

  • To the extent you believe SFBC was misguided in its advocacy, fire away.

    Responsibility for City decisions remains, however, solely with the City. Any claim to the contrary is irrational and intellectually dishonest unless you intend to prove duress. And responsibility for the animus-driven crusade to harm “ignorant bike people” lies with Sweatpants himself.

  • marcos

    @greasy, Responsibility has to be apportioned based on conduct. The SFBC initiated this cavalcade of horrors with their short-sighted advocacy. Once that die was cast politically, the City Attorney could only do so much, or as the case has been, so little.

    You would do well to consult the legal record before defending anybody, because when you talk out your ass, it smells like crap.

    -marc

  • If everyone took just a little bit of the energy they put into blaming, finger pointing, name calling, referring to obscure bits of SF legal history, lawsuits, EIR’s, CEQA’s, WTF’s…. and actually took some time to observe the environment that SF is becoming, this whole stupid, pointless, endless, destructive, ego stroke would have ended ages ago.

    SF is broken for EVERYONE. Our entire street system is dangerous for ALL users- potholes, over crowding, patchwork planning, skewed priorities, legacies of freeway planning/unplanning…. We need to go back to the drawing board and redesign these streets for all users with emphasis on protecting vulnerable users, not on moving vehicles faster (faster vehicles = more vehicular damage to street users).

    The fact is that the world is changing. We can decide to change with it and create a city that will be worth being in twenty years from now or we can just continue on with this BS and celebrate that the only thing anyone will be able to do on our streets is park, because no one will be able to move anywhere.

    Even my 5 year old gets it- too many cars, too fast, too loud.

  • Paul S

    These are undoubtedly good points Adrienne. Marc was saying in earlier posts in this thread that we need to go back to the drawing board, so you’re not alone!

    Rob Anderson seems determined to attempt to slow or if possible stop the change (like the Viking King Canute who, having conquered all of northern Europe, believed he could command the tide to stop), and he has recognized a good opportunity through the legal process which has temporarily served him rather better than Canute’s vain commands.

    The frustration is over the actions that led to leaving the SF Bike Plan exposed to somebody like Rob Anderson, who understands the law and correct process. That seemed to create some deep rifts in the cycling political community, which have not fully closed. But a reorganization among the cyclists has begun, so I think it’s fair to say that some energy has gone into a re-think already. When working with volunteers these things take time.

  • marcos

    I would have you all know that I was the primary author for Supervisor Mirkarimi of Board of Supervisors resolution 050893, introduced on 17 May 2005, two months BEFORE the preliminary injunction:

    http://www.sfbos.org/index.aspx?page=1354

    050893 [Conform Environmental Guidelines to Transit First Policy]
    Resolution urging the Planning Commission to set policy directing the Environmental Review Officer to modify local Environmental Review guidelines to remove the requirement that an Environmental Impact Report is required when a lane of automobile traffic is replaced with a bicycle or pedestrian facility under certain circumstances. Supervisor Mirkarimi presented. REFERRED FOR ADOPTION WITHOUT COMMITTEE REFERENCE AGENDA AT THE NEXT BOARD MEETING

    Supervisor Michela Alioto-Pier referred the resolution to committee where it languished for a year. After the full brunt of the injunction became clear and after developers realized that abandoning LOS might save them money and speed approval of their projects, a hearing was held and the matter moved on to pass the Board of Supervisors unanimously in 2006 after amendment by the City Attorney to add legal coherence.

    City staff has yet to conform its own practice with this statement of City policy four years later.

    -marc

  • Chris

    Unbelievable and totally appalling.

  • g

    the city, not the court has discretion over local street design.

    it is very unfortunate that the city is failing to say this via legislation or argue it in court

  • cyclotronic

    looks like somebody needs a new hobby

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