Supes Reject Legal Appeal Against Fell/Oak Bikeways and Ped Upgrades

A legal appeal filed against protected bike lanes and pedestrian safety upgrades on three blocks of Fell and Oak Streets was rejected unanimously by the Board of Supervisors yesterday. Construction on the project, currently underway the SF Municipal Transportation Agency beginning with the Fell Street protected bike lane, will not be halted by the appeal.

Photo: SFBC

Supervisors dismissed the opponents’ claims that the project required an environmental impact report (EIR) under the California Environmental Quality Act, which could have added a year or more to the project. In a statement, the SF Bicycle Coalition hailed the board “for voting to uphold the city’s thorough work, and against creating a precedent that curb extensions and bikeways require an unprecedented and unreasonable amount of environmental review.”

The appeal [PDF], largely seen as a gambit to slow the project, was filed by Mark Brennan, a developer who owns a building on Oak and Divisadero Street; Howard Chabner, a disability rights advocate; and Ted Loewenberg, president of the Haight-Ashbury Improvement Association. Another appeal could be filed at the state level, though it’s unclear if the opponents plan to do so.

At issue was the Planning Department’s determination that the project didn’t require an EIR under CEQA because it only includes “minor alterations” to existing streets and won’t remove traffic lanes, except for a part-time turning lane on Oak.

The project will re-purpose about 100 on-street car parking spaces from Fell and Oak to create protected bike lanes separated from motor traffic by concrete planters (while replacing about half of those spaces on nearby streets). Much of the striping work on Fell is already done.

Although CEQA doesn’t require an EIR for any of the changes in the project, since they’re considered “minor alterations” to the street, Chabner argued that they go beyond that definition when taken altogether, and that the impacts of a separate plan to overhaul nearby Masonic Boulevard should be considered as well.

Supervisors and advocates disagreed. Supervisor David Chiu said the clause that includes exemptions for bicycle lanes is separate from the clause that lists exemptions for “minor alterations.”

“It seems to me that you’re reading into a requirement in the code that simply isn’t there,” said Chiu.

Walk SF Executive Director Elizabeth Stampe said upholding Chabner’s appeal would slow the already arduous process of implementing crucial street safety improvements. “A reversal of the exemption would really set a bad precedent, forcing full reviews on traffic-calming projects, even small-scale fixes like bulb-outs, as well as other sustainable design improvements,” she said. “We need safer streets sooner, not with more delays.”

Supervisor Scott Wiener questioned the legal implications of defining the removal of car parking as an environmental impact under CEQA. “If you require an EIR to remove net 55 parking spots, what about adding net 55 parking spots?” he said. “What about taking a surface parking lot, if I buy it, and I decide to develop a building there — would that require a full EIR for a two or three story building?”

While the hearing was held strictly to address the issue of the project’s exemption from an EIR, opponents also made arguments against the merits of the project itself (though Wiener urged them to keep the discussion on topic). Lowenberg repeated his assertion that bicycle commuters should instead be forced on to existing alternative routes via Hayes and Page Streets.

SFMTA Project Manager Luis Montoya pointed out, again, that most people aren’t willing to use those routes, since they require climbing uphill at a 12 percent grade and increase the trip’s distance by 20 percent. “This project has been on the front minds of this neighborhood for decades,” he said. “People in this neighborhood and people who move throughout the city have said these streets don’t feel safe, they don’t feel comfortable, please do something about it.”

Montoya said the issues the appellants complained about were analyzed, and that claims like the idea that corner bulb-outs will create car congestion by forcing drivers to make safer turns simply aren’t true. “Yes, hopefully they will be slowing down to increase safety, but it’s not in any measurable way that is going to increase congestion,” he said.

Advocates argued that, contrary to the appellants’ claims, the improvements would have only positive impacts on walking and biking.

“There’s no significant impact on automobile intersection Level of Service,” said Jason Henderson of the Hayes Valley Neighborhood Association. “As much as I would like to get us away from using that metric, I do understand that metric, and this project has thoroughly looked at that.”

Lawrence Li of the Lower Haight Merchants and Neighbors Association told the board many residents were eager to see the project improve access to the neighborhood. “Delays to this project would be harmful to our safety, and we’re quite concerned about that,” he said.

The board’s unanimous vote was “encouraging,” said Li, adding that it seems to reflect a “frustration that the board is feeling around the CEQA process, which makes these kinds of common-sense improvements take way too long.”

Supervisor Wiener recently proposed legislation intended to reduce abuses of CEQA — a state law — as a tool for opponents to slow street improvement and development projects. However, the proposal was heavily criticized for giving too much leeway to developers and was rejected by the Planning Commission, which asked him to bring back a revised proposal next year.

Supervisor Sean Elsbernd, for whom yesterday’s meeting was his last as a member of the board, noted the relevance of Wiener’s proposal to the hearing. “If there’s any reason to support his efforts on CEQA reform,” he said, “this last hour-and-a-half should be something that you keep in your memory banks as you consider that legislation next year.”

  • Thank goodness.

  • Ubringliten

    I can always count on our bike-friendly supes.

  • Shotwellian

    “Lowenberg repeated his assertion that bicycle commuters should instead be forced on to existing alternative routes via Hayes and Page Streets.”

    Seems like he can go park his car on Hayes or Page too…

    These types of arguments are really annoying and wrongheaded. The question is not what streets bicyclists should be allowed to use. State law guarantees bicyclists the right to use *all* roads and streets except designated freeways, and the question is therefore what street design best ensures safe use of the street by all modes of transport. Kudos to the supes for shooting down this nonsense.

  • Anonymous

    Agreed. However, I’d be open to compromise: if there are certain streets on which bicycles aren’t allowed then there must be certain streets on which cars aren’t allowed.

  • Anonymous

    I have to say, my respect for our Supes just went up a notch, especially since it was unanimous. I’m glad to see that they realize that it is utterly ridiculous to try and claim that increasing bicycle ridership isn’t a huge net environmental and health benefit to the entire city.

    Now if we can just get the city to repave the cycletrack so it isn’t so janky ….

  • Foo

    Rob Anderson, how disappointing for you. It’s enough to make you just quit filing appeals for a while and soul-search for a while, don’t you think?

  • They’ve always realized that. But the law is the law, it’s good that Scott (and the state) are seeing the unintended consequences of the law, but they need to deal with the law as is. Watching the hearing, this appeal was born dead because the City did their homework on this one and briefed the Supervisors well.

    It was amusing that no matter how much Scott tried to make it clear to Loewenberg and Chabner that they were off topic, they didn’t care and stayed off topic. Well, it was sad for all eleven of them who had to waste their time listening to an ill formed appeal made simply to re-air their policy grievances.

  • Anonymous

    jd_x: Driving is a restricted privilege while cycling is a right.  So I’m okay with half of your proposal: that cars be banned from certain public roads.  They have no fundamental right to be there.  But bikes do.  State law is clear that bikes be allowed everywhere except expressways, freeways, tunnels, and bridges, where they may (but not necessarily) be banned.

  • Anonymous

    Until the LOS criterion is removed this sort of thing will always be a problem: anything which in any way slows or impedes car traffic is considered an environmental hazard.  Indeed if you were to shut every road in the city it would be environmental apocalypse as every driver would gun his engine in idle until the roads re-opened, choking the city in fumes.

  • Anonymous

    @djconnel:disqus : I was only being half-serious as I agree that bikes should be allowed everywhere (except freeways). I was trying to point out the idiocy of those who propose that bikes have alternative routes they can use so therefore they shouldn’t expect to be able to ride safely on every road, when if you told a driver they couldn’t drive on certain roads they would flip out. Witness what they tried to do in Noe Valley a year or 2 ago when they wanted to close off a measly little half-block to car traffic. I’m just trying to point out the incredible bias in motorists who think they are entitled to be everywhere (which is ridiculous) while bicyclists are not.

  • Anonymous

     Personally I’d take Page. A small street like that could be closed to all but local cars, and left mainly for bikes.  I don’t see what kind of suicidal maniac wants to ride a bike on Fell or Oak, but I can see why accident lawyers are interested in the idea…

  • There’s nothing suicidal about taking Fell, especially if there’s a protected bike lane. But heading west up the steep hill on Page St. (from Divisadero) on a fully loaded cargo bike just might be suicidal!

  • Tahoe

    If riding on fell is suicidal that means our motorists are incompetent. This might be one of the few arenas where we kowtow to the incompetent rather than forcing them to be competent.

  • Jakewegmann

    Good going, Supes! Unanimity sets the right tone. Also kudos to Sup. Weiner for taking on the brave and lonely task of proposing some reasonable CEQA reforms. Truly “the Lord’s work” as the governor put it.

    Now can we get on with reforming this anti-democratic law, which allows a tiny number of individuals to terrorize the overwhelming majority who want beneficial projects, at the state level?!

  • Yes, unanimity sets a tone for another GroupThink decision by the BOS. Both Chiu and Wiener made stupid comments about the issue. Wiener tried to have it both ways—narrowing the decision to the exemption issue, while complaining about CEQA in general terms. Chiu didn’t seem to understand that the project can’t be exempt as a minor alteration of an existing facility if it completely removes a parking lane.

    If Wiener’s CEQA “reform” was such a “brave” effort, why couldn’t get a single Planning Commissioner to vote for it? CEQA requires projects that even might have a negative impact in our environment to do an environmental review before they are implemented. That applies to large developers and significant changes to the design of busy city streets, like this project.

  • mikesonn

    CEQA now just means status quo which is heavy car dependency after nearly 70 years of car-centric building.

  • Mike:

    As a bike guy, you have to know that the impact on traffic from a proposed project—yes, even bike lanes are projects—is one of the main concerns when evaluating any proposed project. An apartment building or a hotel of course have to do traffic studies before construction. The Fallettis development at the corner of Broderick and Oak Streets had to do an EIR for their project. Why is a “status quo” that has such a requirement somehow unreasonable? What’s really unreasonable is that everyone wants his/her favorite project to sail quickly through the processs with only cursory examination.

  • mikesonn

    I don’t think you understand what I mean when I say “status quo”. I’m referring to LOS requirements which, as of right now, are private auto driven. Fell/Oak were made one way in the 1950’s so now they have to stay fast, oneway corridors because that is the “status quo” and changing them, even slightly, might lower LOS which means they would fail current CEQA standards. So really, the only direction CEQA works in is to speed up more and more cars which is the opposite goal of any logical environmental impact report.

  • One of the main concerns for whom? Rob Anderson? Who are you? Nobody.

    The main concerns of CEQA? CEQA is junk.

    I don’t care how fast or slow things sail through “the processs”. The process sucks. I want a new process.

  • “CEQA is junk”? Could you be more specific? Why is it unreasonable to require developers to do an environmental review of their projects before they are implemented? I suspect that this childishness is leftover resentment about our forcing the city to do an EIR on the 500-page Bicycle Plan. Your “new” process would of course exempt bicycle projects because in your mind they are by definition “improvements,” right? Even though the SF Bicycyle Plan will eliminate more than 50 traffic lanes and 2,000 parking spaces from busy city streets! No impact!

  • Tahoe

    Positive impact!

  • Anonymous

    @ea1809617b00430091318d0e92a6ef00:disqus What @mikesonn:disqus is effectively saying is that, nobody had to do an EIR to completely rebuild all our cities around the automobile 50-100 years ago. Now, to change it back to being *not* designed around the car, we have to do an EIR. Not necessarily saying that’s wrong (though I mostly think it is), but that is status quo bias: we didn’t have to do an EIR to get where we are today, but we have to do one to change it now.

    In addition, it’s very hard to argue that getting more people to travel by bicycle is not a huge net environmental (and health) benefit to the entire city. The main problem I have with LOS (and other car-centric policies) is that they externalize the true damage caused by cars to the livability and sustainability of our cities. If you factor all those externalities into our policies, being in compliance with the EIR would in fact require you to cut back car lanes or ban them entirely from most streets and simultaneously put forth a truly massive effort to get people walking, bicycling, and taking public transit. Basically, using LOS as it is (which completely externalizes the true cost of car usage to society) to somehow prove environmental compliance is a complete sham and to say otherwise is greenwashing.


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