Bike ballot bluff: The legal angle

Here's the legal basis for the SF Bicycle Coalition's idea of putting the Bicycle Plan---or a portion thereof---on the city's ballot as an end-run around the injunction preventing the city from implementing the Bicycle Plan until it completes its environmental review:

CEQA Guidelines, sec. 15378(b)(3): "Project does not include (3) The submittal of proposals to a vote of the people of the state or of a particular community that does not involve a public agency sponsored initiative." The case that clarifies this is a California Supreme Court case, Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4th 165. The court ruled that "a preelection EIR should be prepared and considered by the city council before the council decides to place a council-generated initiative on the ballot," because "Voters who are advised that an initiative has been placed on the ballot by the city council will assume that the city council has done so only after itself making a study and thoroughly considering the potential environmental impact of the measure."

To avoid having to do an EIR, such a measure would have to be put on the ballot by the SF Bicycle Coalition, a private entity, instead of the City of San Francisco. But even that would raise an interesting legal issue: could the city still implement projects covered by the injunction---that is, everything in the Bicycle Plan---if such an initiative was passed by city voters?

 

The whole issue seems moot now that the SFBC has apparently abandoned the idea of getting something on the ballot before November, 2008. By then another year will have passed, and the EIR on the Bicycle Plan will presumably be a lot closer to completion. By the time the SFBC could get enough signatures to put a measure on the ballot, get it passed by city voters, and deal with the inevitable court challenge after that, the issues may be resolved one way or another in the EIR process.

 

In any event, the big danger the SFBC would face is possible---even probable---rejection by city voters at the polls. The SFBC seems to assume that the city's bike people are beloved by city residents, but the opposite may be closer to the truth: after years of bad behavior on city streets by cyclists, including the monthly Critical Mass, city voters don't like the bike people much and are likely to reject the Bicycle Plan, especially after a pre-election campaign showed them what's actually in the Plan, like taking away street parking and traffic lanes to make bike lanes. Regardless of what the polls say, the SFBC has to contemplate a worst-case scenario: if the Bicycle Plan lost at the ballot box, where would that leave their ambitious anti-car campaign to remake the streets of San Francisco?

 

By the way, even though CEQA doesn't classify initiative ballot measures as projects, which exempts them from environmental review, it does regard ballot measures put on the ballot by city councils and boards of supervisors as projects that require environmental review. Where is the city's pre-election EIR on last November's Proposition A?