Saturday, November 11, 2006

Judge Busch's decision

You can print out Judge Busch's decision on the Bicycle Plan by going here.

Some of the other documents in the case can be found on the docket here after entering the case number (505509).

Most of the document is CEQA boilerplate.

Here are the highlights:

"As discussed herein, this case does not turn on the merits of the Bicycle Plan and the City's attempts to increase the amount of bicycle use in San Francisco, but turns on the City's failure to comply with the procedural requirements of CEQA...

Petitioners claim that the City failed to comply with CEQA because the analysis should have included review of the draft Network document and because the Policy Framework may have environmental impacts. The Court agrees with both counts...

The City claimed that it originally 'sought to include' the Network document in the Bicycle Plan but later decided to seek approval of only the Framework document. The Record shows that the City deliberately separated the two Bicycle Plan components to hasten CEQA 'clearance,' discussing its strategy at a meeting of the Board's Land Use Committee on May 17, 2004...The Court finds unpersuasive the City's attempts to change its own project description to shrink the scope of the Bicycle Plan...

The City encouraged the Court not to consider its actions in excepting the draft Network document and the subsequent actions taken by it in implementing numerous parts of the Network document, characterized by the City as independent projects. However, the Court is not required to shut its eyes to the reality of the situation...

The City cannot implement this project piece by piece, claiming that the impact of each small project does not have a significant environmental effect. Such reasoning is akin to trying to avoid review of a timber harvest plan by removing trees one at a time, claiming each tree removal to be independent and exempt. At the end of the process the forest would be gone or the entire City streetscape reconfigured without environmental review ever having happened...

The City's claim that impacts were too speculative to analyze is flatly contradicted by statements in both the Framework and Network documents describing and listing the Bicycle Plan's potential significant impacts...The claim is also belied by the ability of the City to analyze and adopt the Nework document as a funding plan. The City's claim that impacts are unknown or unknowable is contrary to the law, since the City must ascertain whether the Bicycle Plan may have a significant impact before it asserts that the Bicycle Plan is exempt...

The Record shows that the Bicycle Plan, considered as a whole, may have a potentially significant effect on the environment. The City's own documents show that it knew the Bicycle Plan would have significant impacts. For example, the Framework document states that the Project may have significant impacts, including 'extensive parking loss, changes in land use, immitigable impacts to transit operation, streetscape reconfiguration, etc.' Given the extensive scope of the citywide Bicycle Plan and its potential effects to the streetscape, parking, traffic, and public transit, the Bicycle Plan may have a significant effect on the environment..."

In other words, the city lied about both the scope of the bicycle plan and its potential impact on the city's environment to avoid complying with CEQA. Judge Busch did not specifically order the city to do an environmental impact report, which was disappointing. Instead, he ordered the city "to reevaluate the Bicycle Plan as defined above, and any subsequent actions implementing any part of it, under CEQA," which amounts to the same thing. After this serious rebuke by the court, it would be risky for the city to try another end-run around CEQA.

And, importantly, the injunction issued last June by Judge Warren remains in effect. Hence, the city's "reevaluation" of the Bicycle Plan in compliance with CEQA must take place before any more work can be done on the Bicycle Plan involving changes to city streets. Given the court's accurate characterization of the Bicycle Plan's extensive scope, it seems unlikely the city can get away with a negative declaration; they may attempt a tiered EIR, which is designed to deal with a number of smaller projects that fall within the scope of a larger project.

The galling thing about this whole controversy is that it could/should have been avoided, since last year some of us tried to warn the Planning Commission and the Board of Supervisors of the folly of their course of action leading to this situation here and here and here and here.

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