Judge Busch Could Block New Bike Lanes Through March 2010

2692066480_2b751980c4.jpgJudge Busch could partially lift the injunction for now, allowing the city to paint sharrows but not bike lanes. Flickr photo: BikePortland.org

The injunction that has hung like a pall over San Francisco’s efforts to improve bicycle infrastructure for the city’s growing number of bicyclists will remain for at least another ten days, and could continue in partial or full form until March 2010 or beyond. A judge today delayed decision on lifting the three-year-old bike injunction, instead ordering both the city and Mary Miles, attorney for Rob Anderson, who first sought the injunction, to submit additional materials by November 12. The judge could then lift the injunction completely, lift it partially for sharrows and bike racks but not bike lanes, or uphold it until a 2010 hearing on the city’s environmental review of the bike plan.

Today’s hearing came two months after the City Attorney’s office filed a motion to lift the bike injunction, arguing the city had met all its legal obligations by completing an exhaustive environmental impact report (EIR) on the bike plan, which was approved by the Board of Supervisors and the MTA Board this summer. Bicycling advocates had hoped Superior Court Judge Peter J. Busch would lift the injunction today, clearing the way for the MTA to begin rolling out the 45 bike projects recently approved by the agency’s board.

The injunction was first implemented when Miles sued the city for failing to complete an EIR for the bike plan, which the MTA had treated as a series of discrete projects.

Deputy City Attorney Kristen Jensen argued before the court that a hearing on the adequacy of the EIR, which Miles is seeking, should be dealt with separately. "The burden shifts to the petitioners once the EIR is presented," said Jenson. "The lens through which the court must look changes dramatically."

Jensen also cited the rising number of injuries to cyclists in the past two years, which she said was unexpected even given the rising popularity of cycling, adding extra urgency to lifting the injunction. "The city has been unable for the last three-plus years to do virtually anything for the safety of bicyclists in San Francisco," Jensen said. "The city needs the ability to start making the city safer."

"The rule is the public entity goes ahead while the review goes on,"
Judge Busch told a courtroom filled mostly with MTA representatives,
reporters, SFBC staff and Rob Anderson. Busch said his concerns were
mostly procedural: Can he dissolve the injunction and then order the
MTA to reverse bike projects if he later sides with the plaintiff’s
weak contentions the EIR doesn’t comply with CEQA?

Miles argued that the court does need to first certify the adequacy of the EIR before lifting the injunction, and that an eventual hearing, perhaps in March 2010, would be pointless since the city would likely implement most of the plan by then, perhaps irreversibly.

When pressed by the judge on what projects the city plans to go forward with immediately, the City Attorney’s office replied that the MTA plans to first move first on painting sharrows and installing bike racks. Deputy City Attorney Audrey Williams Pearson said the MTA has determined it can paint 20 sharrows, install 5 bike racks and stripe 400 feet of bike lanes per day. The City Attorney’s office pointed out that bike racks and sharrows don’t require the removal of traffic lanes, so they would be less likely to impact traffic before a final hearing on the EIR in March 2010.

Bike_Network_56.gifProposed new bike lanes across the city. Image: SFBC

The judge asked the City Attorney’s office to submit a four-to-five-page declaration by this Friday detailing the MTA’s likely immediate activity on bike infrastructure if the injunction is lifted before a March hearing. In addition, on November 12, both sides will present the judge with short briefs on whether they believe the court would have the legal authority to reverse any new bike infrastructure installed before the March hearing, if it finds the EIR is inadequate (which is seemingly unlikely.) The judge also asked both sides to agree upon a schedule for the EIR hearing by November 12. The City Attorney’s office said it could submit a brief by this Friday instead, but Miles cited her busy schedule with another case and requested the additional time to complete the brief.

It’s possible the judge would neither completely lift nor entirely preserve the injunction after the November 12 briefs are in. He suggested the possibility of a partial lifting of the injunction, perhaps allowing sharrows and bike racks but not bike lanes to be installed, for instance, until the March 2010 EIR hearing.

Despite dashed hopes for an end to the injunction today, the SFBC’s Andy Thornley remained optimistic about the hearing. "The line of questioning we were hearing today indicated that he is considering whether there is a way to relieve the injunction partially or totally with an eye to the reversibility of these change," said Thornley. "It’s just paint, it’s just bike racks, and I think the judge in his questioning is indicating that he would be open to some relief to the injunction, because we can always erase them. That would be at the city’s risk, of course."

While the additional delay is a significant disappoint to the city’s bicycling advocates, the City Attorney’s filing this Friday could provide an interesting view into the MTA’s timeline for rolling out the bike plan projects – and a hint of whether Judge Busch’s apparent preference for reversible projects could influence that timeline.

  • patrick


    sure, why don’t you include toxic waste and napalm is part of the environment? It exists so it must be part of the environment.

    Environmental quality & preservation should have nothing to do with historic preservation. They are two completely separate issues, and SF already has historic preservation ordinances (which is, like CEQA being abused… 1960s libraries are historic according the the preservation committee). Historic preservation laws should take care of historic preservation, environmental protection laws should protect the environment, CEQA certainly fails the latter.

    “if agencies and companies properly prepare CEQA documents, something that’s not rocket science, they aren’t particularly vulnerable to these lawsuits”

    That’s complete BS, there are tons of lawsuits against projects with complete EIRs, the laws are so vague it’s nearly impossible to completely comply with them. CEQA is only useful to people who want to delay and hopefully kill a project with cost overruns. Since I’ve said it several times, and you haven’t refuted it or provided any evidence to the contrary, I’ll presume you agree.

    “how do you think government permitting agencies and the public should be notified of the potential impacts of projects”

    Here is what clearly doesn’t work: a system that has inherently flawed assumptions, is neither objective, nor scientific, takes years to complete, is ridiculously expensive, and can then only be confirmed via lawsuit… hmm… sounds like CEQA. Note how the bike plan is still threatened even though an EIR is completed, lifting the injunction is still undetermined, and even if it is the judge may require all improvements be reversed if the EIR is found inadequate, sounds like a job well done for CEQA to me!

  • patrick


    Totally agree, I would love to see some decent leadership in the Bay. I grew up in LA and I’m amazed to see that they are soon going to surpass us in transit ridership, total rail mileage, and number of stations, but at the same time it gives me hope… if LA can do it, ANYBODY can do it… but we’ve definitely got a lot of work to do.

  • patrick


    just heard the California High Speed Rail EIR has been de-certified, another win for CEQA and the environment!

    How dare anyone try to replace a polluting train and/or car trip with a renewable energy powered comfortable high speed rail trip?!?

  • marcos

    My suggestion in 2005 was that the City adopt a two track strategy.

    The first was that that the City prepare a complete yet shallow EIR that stipulated to potential LOS impacts and to transit delays at a very low threshold, suggested mitigations and covered them with a statement overriding significance.

    One could imagine an EIR-by-computer that would take in traffic data, run that through a decreased capacity algorithm and then produce a report. City staff could have done that in house.

    The second track would have been the lumbering process of securing CIty staffer Valhalla–contracting to a consultant–and producing the more in depth document.

    Once track one wrapped up, the City could have gone to court in 2007 or so with a document that passes the bathroom scale test, and seen how that flew, with the longer document as a longer term safety in the back pocket.

    This did not happen.

    CEQA is the law, and either you follow the law or change it. In this case, if you have not had it rammed into your brains enough times by the Superior Court, the City did not follow CEQA. Delaying transit is a signfiicant environmental impact. Removing auto lanes for bike lanes would delay transit. Delaying transit puts people back into their cars. More autos makes cycling more dangerous and further delays Muni. Do people really think that bicycles and everything about us trumps transit and everything about that?

    CEQA takes into account impacts on both what’s left of the natural environment as well as the built environment. If you don’t like that, then call our always accessible state legislative delegation and seek a change to the law.

    Personally, I’d like to see an environmental quality act deal with the natural environment, with ta social quality act dealing with impacts on the built environment. But that’s not going to happen unless political power is deployed towards that end.

    At the aforementioned Zeitgeist happy hour, I asked the assembled a few months ago when the injunction would be lifted. The sentiment from SFBC people was that the EIR had been produced and all the judge needed to do was sign off on it. When I mentioned that the EIR was the size of a modest telephone book for a metropolis, and that the judge might want to review it to see if it complied with the law, that was laughed off as silly. Just like CEQA as a consideration was laughed off as silly. Just as concerns about the bundling of the bike plan was laughed off as silly. Just like the possibility of a restraining order was laughed off as silly. Just like the injunction was laughed off as silly.

    @patrick: “We are all accountable as long as we allow this to continue.”

    The only ones accountable are the ones who live steeped in denial that there is no problem or those who have, under the guise of trying to solve a problem, stood in the way of solutions.

    CEQA offers up many options for local customization, for communities to set their own standards of what an environmental impacts is based on the presentation of substantial evidence. Many of us have been working on this for almost a decade now. When did I write that CEQA LOS reform resolution for Mirkarimi, back in 2005? The main impediments towards progress are bureaucratic, Planning, the MTA and the City Attorney, and the veal pen of advocates who they keep around, boarded up with feeding tubes in their mouths who couldn’t strategerize their way out of a bike box.

    There are individuals with names who get paid to take responsibility for this stuff. They actively exclude people from participation, folks who saw this coming years ago, and the professionals whose counsel has resulted in successive failure pretend that there is no problem even after it is clear that we’ve had 5 years of problems now.

    The fact that (A) Anderson and Miles are wrong on the public policy of bike lanes has no bearing on the viability of their lawsuit. The fact that (B) advocates were pushing desirable public policy does not absolve them of following the law. Never, ever should a (C) anyone cast aspersions on any lawsuit that compels compliance by government with the law.

    The fact that our advocates are still stating in public that (A) and (B) are false, and continue to demonize the plaintiffs (C) should telegraph to cyclists that the people getting paid to advocate for us were wrong in the first instance and since they’ve not changed their analysis as far as I can tell, cyclists will be put in further danger if these individuals continue to get paid to represent us.

    Unless we get accountability from the SFBC, MTA, MEA and CIty Attorney’s office, this will happen over and again.

  • SFResident

    @Patrick: Naplam and toxic waste are part of the environment. CEQA requires that their effects on a project be understood before permits are granted. The ‘environment’ is more than endangered animals, forests, and wetlands – all of which, in any case, have been dramatically shaped by people here in California for tens of thousands of years. Read Kat Anderson’s book “Tending the Wild” if you don’t believe me – the evidence is so strong that it is impossible to reasonably argue with. Thinking that there’s some sort of radical Cartesian split between the natural and cultural landscape is borderline-mystical thought.

    The fact that you can’t understand why a library built in the 1960s could possibly be considered historic shows that you don’t really care to understand issues of historical preservation. You don’t value the historical fabric of our communities, that’s fine, just know that there are many, many people who do.

    “That’s complete BS, there are tons of lawsuits against projects with complete EIRs, the laws are so vague it’s nearly impossible to completely comply with them. CEQA is only useful to people who want to delay and hopefully kill a project with cost overruns. Since I’ve said it several times, and you haven’t refuted it or provided any evidence to the contrary, I’ll presume you agree.”

    If you want to read the CEQA case law you can find it at http://ceres.ca.gov/ceqa/cases/ There are plenty of bad projects in there that would have been approved by government agencies without the sunshine required by CEQA. For a state as large as California with hundreds of thousands of CEQA documents prepared every year, an astoundingly small number of them are successfully litigated. Sure, people occasionally try, especially on the large marquee issues or when they have an axe to grind like Anderson, but the vast majority of cases are open-and-shut.

    The recent HSR decision does not in any way stop the project or even delay it. The judge (who seems like a much more reasonable guy then the judge presiding over Anderson’s tantrum) simply agreed that HSR EIR didn’t adequately explain what the noise impacts will be. The judge explicitly allowed CAHSR to move forward with the project in the meantime – this isn’t at all like the bike plan. CAHSR’s confident that they’ll be able to easily bat away the flaws and none of Atherton’s substantive complaints were found to be relevant. the judge gave plenty of evidence that he’ll approve the document as soon as CAHSR deals with the noise issue – and to pretend that noise impacts are not something that should be known prior to development or permitting is to invite all sorts of destructive projects.

    With the bike plan, the city of San Francisco made bad decisions, Anderson made bad decisions, and the judge in this case made really bad decisions. LOS clearly needs to be reformed. But you present no reasonable alternatives – heck, you present no alternatives at all.

    Again, I ask, who should we entrust to inform government agencies and the public about the impacts of a project and who should pay for it? I’m open to alternative ways to run these sorts of projects, but I’m not hearing any suggestions.

    Just saying “CEQA sucks” doesn’t get us anywhere and plays directly into the hands of those who would destroy our communities in the name of profit.

  • patrick


    great post, well written, and well thought out.


    the environment is everything, but not everything in the environment is worth protecting.

    I understand why people would try to claim that a library built in the 60s that looks like just about every other library built during the same period is historic: obstructionism. I also understand that such abuses of historic preservation taint the whole process and result in backlash that jeopardizes the protection of things that have real historic value. By your definition everything that exists is historic.

    I agree with marcos: “I’d like to see an environmental quality act deal with the natural environment, with a social quality act dealing with impacts on the built environment.”

    ultimately the historical provisions are minor, CEQA is flawed far beyond just the historical elements.

    “There are plenty of bad projects in there that would have been approved by government agencies without the sunshine required by CEQA”

    just because a bad system occasionally works doesn’t make it a good system. There are plenty of good projects that get blocked as well, and there are bad projects that sail through. Good projects get done despite CEQA, not because of it.

    The bike plan issues are just an example of the problems of CEQA, and as marcos said, there were bigger mistakes made that had to do with the decisions on how to get the projects done under the current flawed system… the bike plan could have been implemented much faster had they just followed the existing law, as flawed as they are.

    The outcome of the lawsuit for HSR is not trivial. It may cause delays, I’m hopeful that it won’t but there’s no guarantee. CHSRA was given 70 days to make corrections, if they can’t do it, who knows what actions the judge will take? I agree that the judge in the HSR case is more reasonable, but that just points out another flaw, why should it matter what judge you get? As far as I know the choice of 70 days to correct was also arbitrary. It will certainly cause further costs as they now have to go back and redo work (they’ve probably already started the work, but it costs). It also leaves the door open for further lawsuits when the EIR is re-certified… and therefore more potential delays and costs. And what if another group of NIMBYs in LA or the central valley decide to file a lawsuit over a different part of the EIR? And lawsuits on the program level EIR… and on and on and on.

    “who should we entrust to inform government agencies and the public about the impacts of a project”?

    Right now we are entrusting lawyers and judges, that’s definitely not who it should be. But it’s not even an issue of who we are entrusting, it’s a matter of garbage in, garbage out. The current system is flawed, so everything that goes through it will have flaws. No system will ever be perfect, but there is a lot of room for improvement, as I said before, the intent is good, the implementation is bad.

  • marcos

    “Thinking that there’s some sort of radical Cartesian split between the natural and cultural landscape is borderline-mystical thought.”

    Iit is a mistake to cram it all together into CEQA just because there is no bright line between the built and existing environment.

    To my mind, social impacts are those which are felt by humans which have agency to do something about it, Rob Anderson, and environmental impacts are felt by ecosystems which do not have agency, Hetch Hetchy.

    To my mind, CEQA aims to require that jurisdictions give agency to constituencies deemed worthy of protection but which do not have the ability to speak for themselves and be represented in the deliberations unless they luck out, generally warm, cute and fuzzy mammals.

    Further, to my mind, environmental impacts that should be studied under a framework like CEQA are those which do not necessarily directly effect humans. Other frameworks would be more appropriate for discussing built environmental impacts.

    The political nature of the conversation is very different when you’re considering paving the bay for airport runways or increasing delay by removing an auto lane for a bike lane, and since the law is one mediation of people’s relationship to government, the law should be appropriately tailored to the nature of discussion at hand and facilitate that discussion rather than hinder it.

    Aspects of the LOS matter would be much better handled in a social impacts analysis, where we could have the discussion about the politics of roadway allocation by modality and about public health impacts. We could also have an environmental discussion under CEQA as to the Muni delay and big picture, life cycle analysis environmental impacts of facilitating cycling, mode shift, aggregate emissions, impacts which are not deemed significant under CEQA and which don’t really get studied.

    We can also have strong historic preservation laws outside of the CEQA framework unless, of course, you preservationists see the corpus of CEQA and all of its complicated case law as a historic resource worthy of protection. Just kidding.


  • jason

    There’s a lot of passionate debate about this but a lot of it seems to come from the extreme sides of the issue. I consider myself in the middle. I live in the City and I get around by car (a yuppie scum BMW SUV, btw), bike, muni, bart, caltrain, and foot. I desperately want the city to make cycling safer and hope that the injunction gets lifted soon.

    Mr. Anderson appears to be a very vindictive person who simply wants to wound anyone remotely associated with Critical Mass. I can understand some of his frustration–if you drive downtown to work or take muni and your bus is stuck for an hour due to the CM ride, that would probably suck. But his vindictive and frivolous suit hurts a much wider audience than the one that he intended.

    He seems to conclude that biking is unsafe in the City, therefore people should avoid it altogether, rather than try to constructively address the issue. This makes no logical sense whatsoever.

    The reality is that we all share the roads together. As a biker, I would really prefer to have my own protected lane as I cruise down Caesar Chavez at 7:30am. It’s a freaking nightmare. But guess what, as a driver, I also want those bikers in their own protected lane. It’s safer for them and easier for me to pass them.

    I’m not even going to dig down into the conflict between pedestrians and muni, who seem hellbent on killing said pedestrians… Don’t you think that muni ride would be just a little bit faster if the bus didn’t have to pull over and wait for the police to show up after rolling over some poor schmuck in a poorly designed intersection? I do.

  • SFResident

    @macos – That’s an interesting idea, and it’s good to hear solutions that aren’t just attacks on a process that is clearly imperfect but that serves a very real public interest.

    Bifracating the system could have some productive results, although if we strengthen the “environmental” proections while weakening the “social” protections I would worry that we would exacerbate the social disparity of development projects – not everybody can articulate their political interests or discover the impacts of a local project with the same vigor. Something that I think environmentalists too often forget about. The long history of companies putting unhealthy and undesirable projects in poor and politically weak areas (e.g. Chevron in Richmond) demonstrates this point pretty well.

    Historic preservation isn’t a *huge* deal to me, but I do think analyzing the impacts of a project on the historical fabric of our communities is a worthy consideration. Under a reformed CEQA or similar system we could have better (not necessarily stronger, but better) standards, but my big worry is that “reform” will turn into “elimination.” There are plenty of forces that want to eliminate CEQA entirely. And no, I don’t think that the North Beach library is historically significant but I also don’t think dismissing such claims out-of-hand constitutes smart city planning. I also think that it’s foolish to dismiss the possibility that any building from the 60s could be significant and worthy of preservation.

    The real solution would be to all act like reasonable adults when we design cities and approve projects, but as folk like Rob Anderson prove, that’s not really possible.

  • “just heard the California High Speed Rail EIR has been de-certified, another win for CEQA and the environment! How dare anyone try to replace a polluting train and/or car trip with a renewable energy powered comfortable high speed rail trip?!?”

    Bad analogy.

    The UP route studied in the DEIR is utterly different than the one which would actually be built. Even worse, the actual route involves miles of deep bore tunneling directly under a lot of homes and businesses.

    OBVIOUSLY, the EIR is going to be rejected in court if it fails to disclose such major environmental (and financial) impact. Thus, the EIR process worked correctly for the CSHRA project — “sort of”. We can only say it “sort of” worked because the inferior, more expensive route will still ultimately be selected.

    Similarly, the EIR process for the SF Bike Plan has worked correctly — “sort of”. We can only say it “sort of” worked because it took 3 long years for staff to complete the doc. And why did it took so long? Answer: It just was not a priority for the Mayor or his MTA.

    Thus, it is easy to vent frustration at CEQA process (and the Rob Andersons of the world). But the real culprit is the dysfunctional and corrupt political leadership.

  • marcos

    For every Rob Anderson there are ten developers who would tear down an old SF house or three to build a structure with three times the impacts and abscond, leaving the neighbors and City holding bag of impacts. CEQA is a critical tool to check profit driven development, and it is dangerous to challenge anyone’s right in a democracy to seek redress through the courts. On this, Anderson and I are of one mind.

    The model CEQA uses to be sure that environmental impacts are disclosed and mitigations are proposed is basically sound. But CEQA’s environmental analysis is used as a proxy to be sure that social impacts are valued like environmental impacts.

    So we need to be sure that social impacts are studied with the same structure and gravity that environmental impacts are so that we can eliminate the use of proxies which distort (LOS, delay for air quality) the analysis and achieve a desired outcome because CEQA is the only game in town.

    What CEQA does fairly well is to catalog what impacts a project would write off of its balance sheet and foist onto the environment as an infinite sink. What we need is for the full life cycle of projects to be analyzed and for all of the impacts a project entails and would write off its books and onto the public at large to be disclosed and for either mitigations or other compensation to be proposed.

    Currently, residents must rely on the unstructured political process to consider those impacts. And clearly, the political process is ripe for corruption, especially where lucrative projects are involved.

    A structured process for disclosure of social impacts, with comment periods mandated and judicial review of disclosure available, to ensure that social impacts are not intentionally concealed for politically connected players, would do well to balance the discussion on projects to be sure that those who profit cover their costs to the taxpayers and environment alike.

    If that would have happened with Eastern Neighborhoods and Market Octavia, if the full extent of taxpayer subsidy, of Muni rider subsidy for (then) profitable new developments to be disclosed, then I think that there would have been more resistance to these giveaways.


  • patrick

    You mean the tunnel under Caltrain ROW that NIMBYs are asking for? It’s not likely to happen, that’s why it’s not part of the EIR, and that has nothing to do with the actual lawsuit. I’m not aware of any other tunnel that goes under a bunch of houses and businesses that could have anything to do with the lawsuit. I’m not really too concerned about the HSR lawsuit at this point in regards to the project, I don’t see it as being much of a problem overall, just used it as an example of the many flaws of CEQA.

    Sure, the law was upheld in both cases (HSR & bike plan). Ultimately, when the only recourse is a lawsuit, and a huge percentage of things covered by the law wind up in a lawsuit, the system is broken. Lawsuits should be the exception, not the standard. If you see that as a sign of a properly working system, then lets just agree to disagree and move on.

  • marcos

    “Sure, the law was upheld in both cases (HSR & bike plan). Ultimately, when the only recourse is a lawsuit, and a huge percentage of things covered by the law wind up in a lawsuit, the system is broken. Lawsuits should be the exception, not the standard. If you see that as a sign of a properly working system, then lets just agree to disagree and move on.”

    We’ve got to dispense with the use of the term NIMBY for anyone who opposes your project.

    Planning schools teach students that NIMBY is the proper means to dispense with community input on a project that impacts them, and that progress dictates that democratic participation is incompatible with “growth,” which really means “my project” unless it supports “growth” unconditionally.

    When bureaucrats let their policies get out ahead of public opinion or the law, they will and should get slapped down, especially when they try to mess with people with resources.

    Environmentally or socially, California is not a blank canvas and the existing environment, political and physical, needs to be respected.

    The easy way is for lead agencies to follow CEQA and to not conceal impacts, even if those impacts are in the back yards of a few neighbors.


  • patrick


    Point taken, I will try to find a more neutral term, and use the phrase NIMBY more selectively, or not at all. There are certainly bad projects that get pushed through, and even good projects that could be implemented more conscientiously taking the needs of the affected community, but…

    In the particular case I am talking about (the discussion of a tunnel for the peninsula) I feel the term is appropriate. While true that not everybody involved in this particular issue is a NIMBY, there are a large portion of people arguing against upgrades for HSR who have their backyards directly adjacent to the existing Caltrain ROW. They are trying to force the state to pay billions extra for their own parochial concerns, many of which have no basis in reality. The existing plan as-is already has many benefits for the people along the ROW, no more horns, no more waiting at grade crossing, no more accidental deaths of people crossing against the signals, reduced suicides as jumping in front of a moving train will be much more difficult. I have no problem if they want to find a way to pay for the tunnel themselves, but to ask the state to pay for it, or to try and contradict the voters of the state over the issue, is, in my opinion ridiculous and the essence of NIMBYism.

    I am all for considering the needs of those impacted by a project, but at the same time, you are never going to make everybody happy. If it is a project worth doing, then at a certain point you just need to move forward.

  • “You mean the tunnel under Caltrain ROW that NIMBYs are asking for? It’s not likely to happen, that’s why it’s not part of the EIR.”

    No, the tunnel that the __CHSRA__ now proposes to build starting from Diridon station and running South underneath a lot of homes and businesses.

    There was no mention of this in the EIR. Instead, the EIR had assumed use of UP ROW, which everyone knew was not be available.

  • patrick

    I believe the EIR has been reopened, and that portion will be restudied, and that a tunnel is only 1 of several options. Am I wrong?


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