Complicating the simple

The city had the right to approve its current Bicycle Plan

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steve@sfbg.com

GREEN CITY San Francisco can legally give more street space to bicycles, even if it delays cars or Muni in some spots, a policy that enjoys universal support among elected officials here. So why have all the city's proposed bike projects been held up by an unprecedented four-year court injunction, despite the judge's clear affirmation of the city's right to approve its current Bicycle Plan as written?

The answer involves a mind-numbing journey into the complex strictures of the California Environmental Quality Act and its related case law, which was the subject of a three-hour hearing before Superior Court Judge Peter Busch on June 22 that delved deeply into transportation engineering minutiae but did little to indicate when the city might be able to finally stripe the 45 bike lanes that have been studied, approved, funded, and are ready to go.

Anti-bike activist Rob Anderson and attorney Mary Miles have been on a long and lonely — but so far, quite successful — legal crusade to kill any proposed bike projects that remove parking spaces or cause traffic delays. They have argued that the city shouldn't be allowed to hurt the majority of road users to help the minority who ride bikes, urging the city and court to remove those projects from the Bike Plan.

But Busch repeatedly said the court can't do that. "That's the policy question that's not for the court to decide," he told Miles in court, later adding: "I don't get to decide that the Board of Supervisors' policy is misguided."

Yet city officials have offered detailed arguments that the policy of facilitating safe bicycling isn't misguided, but instead is consistent with the transit-first policy in the city charter and with the goals of reducing greenhouse gas emissions, improving public health, and even alleviating overall traffic congestion by giving more people good alternatives to driving a car.

Busch hasn't indicated that he has any issues with that rationale. Instead, the question is whether policymakers had enough information — in the proper manner spelled out by two generations' worth of legal battles over land use decisions in California — to make their unanimous decisions to approve the Bike Plan in 2005 and again in 2009, after completing a court-ordered, four-volume, two-year, $2 million environmental impact report.

Miles argues that the EIR is legally inadequate in every way possible, employing such gross hyperbole in condemning it as a hollow document that does nothing to explain or justify any of its conclusions that Busch told her at one point, "That's such an over-argument, it leaves me wondering about the rest of your argument."

But he's certainly considering the rest of her argument that more analysis was required, going into great detail on the questions of whether the city studied and spelled out enough alternatives and mitigation measures, how much of the voluminous traffic survey data should be in the plan, whether there was enough support for the thresholds of significant impacts, and what the remedy should be if he finds some minor errors in the methodology.

Yet even Busch said there wasn't a clear regulatory road map for the city to follow on this project. "There probably has never been an EIR for a project like this," he acknowledged. It was the city's decision in 2004 to do a Bike Plan that mentioned specific projects without studying them that led to the injunction and this extraordinarily complex EIR, which did detailed analysis on more than 60 projects.

"Once you get that complexity, the toeholds are everywhere to fight it," activist Mark Salomon, who has long criticized city officials and bicycle activists for their approach to the Bike Plan, told us.

But Kate Stacey, who heads the land use team in the City Attorney's Office, says the city will be in a good position to quickly create lots of bike lanes once this plan passes legal muster.

Comments

What is the record of Dennis Herrera's Land Use Team before the superior court on this matter?

2 for 12 is my guesstimate.

With a record like that, how can anyone take that team's public or legal statements seriously?

-marc

Posted by marcos on Jun. 30, 2010 @ 10:44 am

Steve, I don't think that delaying Muni for bike lanes enjoys universal support.

Passing a bike plan not knowing that there were transit delays enjoyed universal support. Those impacts were now known when the plan was passed.

The MTA has since mitigated the impacts of removing auto lanes for bike lanes on Muni because but only because those impacts were identified in the EIR.

That makes it is clear that in quarters that count, delaying Muni is not an acceptable negative side effect of an otherwise good bike policy.

How are we going to know if a project delays transit unless we study that?

Why would we want to try to dig Muni out of a hole only to have dirt thrown on us by bike lane or development related delays?

How much of our refuse can we throw onto Muni and expect it to still perform to advance a host of other policy goals?

Comprehensive land use and transit planning requires that as much knowledge about the systems involved be collected and analyzed so that one can accurately assess the impacts of projects on those very complicated systems.

-marc

Posted by marcos on Jun. 30, 2010 @ 12:56 pm

Steven, I really appreciate this piece and yours effort to bring this issue to the SFBG readership. A lot of people in the progressive community instinctively flinch at any suggestion that CEQA should be rolled back or modified in certain situations. But when you explain, as you did, its effects on bike projects or, for that matter, on affordable-housing-projects-near-transit (what we all say that we desperately want and need), it becomes abundantly clear that there is a serious structural issue.

CEQA is arguably appropriate and needed for the likes of massive hard infrastructure projects and new subdivisions in greenfield locations.

But in the context of livable streets and equitable housing, it is holding us back from building the world that we need. It doesn't make it impossible, but it makes it far slower and far more expensive than it needs to be. It frustrates positive developments and prevents them from building on their successes to attain a critical mass. Also, because of the legalistic mindset that CEQA fosters -- where every intervention that is contemplated must be exhaustively studied in an attempt to bullet-proof the EIR from possible lawsuits -- there is a suppression of design creativity and incremental experimentation of the sort that abounds in Amsterdam and Copenhagen, the livable streets capitals of the world. These are the places that we should be emulating if we're truly as serious as we claim to be about being a green, low-carbon, livable city. It goes without saying that these places have nothing resembling CEQA.

The solution is state-level legislation to exempt whole categories of beneficial projects -- say, car-lane-to-bike-or-ped conversions and all-affordable housing projects within 1/4 mile of a rail transit stop -- from ANY CEQA process whatsoever. All of a sudden the Rob Andersons of the world would have to crawl back into their caves, because they would have no grounds on which to launch a lawsuit to stop what had been duly decided upon.

The effects of bike improvements on Muni are surely important and must be taken into account. But we already have a democratic mechanism in which to do so. It's called the Board of Supervisors. There is no reason why this issue couldn't be duly studied within the context of existing city-level procedures, rather than under the auspices of a state law. Environmental law that allows a single cranky person to launch a lawsuit on virtually any grounds, however flimsy, and succeed in frustrating the bike infrastructure ambitions universally agreed upon by the City's political leadership for four years is the furthest thing from being democratic.

Posted by Guest on Jul. 01, 2010 @ 8:09 am

Projects that delay transit, no matter what other benefits they offer, create environmental impacts.

The predicate for streamlining bike projects was that they "could not possibly have" any environmental impacts.

We were wrong. They do. And CEQA commands localities to study impacts on transit and to propose mitigations. Thankfully, that is not going to change.

Cyclists need to face up to the fact that our advocacy was so misplaced that even someone like Rob Anderson was able to punk us in court. Food for thought.

-marc

Posted by marcos on Jul. 01, 2010 @ 8:44 am

Thanks for the feedback and insights, Guest, I think you make some excellent points. CEQA could definitely use some reform and modernization, as even progressive urban thinkers like Tom Radulovich have suggested. I think that an exemption for bike and pedestrian projects would make a lot of sense. Even if they cause some Muni delays, it would be pretty easy to correct those later, particularly if cities were freed from the more ridiculous uses of CEQA and allowed to be more nimble and experimental. That has worked well on the temporary projects in SF, which are exempt from CEQA, and it would certainly work with bike projects. After all, it's just paint on roadways, which is pretty easy to alter later if its creating a problem.
stj

Posted by steven on Jul. 01, 2010 @ 3:34 pm

It is interesting the commentators that want to repeal CEQA for the projects they favor, but keep it in place for the ones they dislike. There doesn't seem to be much logic behind those positions. Maybe you don't care about the environmental impacts of affordable housing but others (particularly those who live near the proposed projects) may care deeply about them. Just because affordable housing happens to be your most important policy goal doesn't mean you can ignore others concerns.

As for the impact of bike lanes being easily reversible, that is not always the case -- look at the proposal for Cesar Chavez. Also, people are rightly suspicious that something that is labeled as being "temporary" will be kept in place permanently whether or not it is delivering its proposed benefits. People know it is difficult to remove something that exists, so they sensible oppose creation of "temporary" things. This does make "experimentation" more difficult. Proponents of experiments need to think of ways to truly make such projects "experiments", so that they won't be perceived as back-door attempts to create something permanent.

Posted by Bob on Jul. 04, 2010 @ 12:13 pm