The EIR on the Bicycle Plan is inadequate

FROM:
Mary Miles (State Bar #230395)
Attorney at Law

TO:
President David Chiu and Members
San Francisco Board of Supervisors
Room 244, City Hall
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102

DATE: August 4, 2009

COMMENT IN SUPPORT OF APPEAL OF CERTIFICATION OF ENVIRONMENTAL IMPACT REPORT (EIR) BY THE SAN FRANCISCO PLANNING COMMISSION ON JUNE 25, 2009, AND OPPOSING ACTIONS APPROVING, ADOPTING, OR IMPLEMENTING THE SAN FRANCISCO BICYCLE PLAN PROJECT
Board of Supervisors File No’s. 090912, 090913, 090914, and 090915; 090867 and 090868; Agenda Items: 18 (090912); 19 (090913); 20 (090914); 21 (090915; 22 (090867); and 23 (090868) References: Planning Commission Motion No. 17912 [Certifying the Final Environmental Impact Report], Resolutions 17913, 17914, and 17915 [Recommending Approval of Portions of the Project] adopted June 25, 2009; MTA Board Resolutions 09-105 and 09-106, adopted June 26, 2009 [Recommending Approval of and Provisionally Approving Portions of the Project].

Dear President Chiu and Members:

This is public comment (“Comment”) on behalf of Appellant Coalition for Adequate Review (“Coalition” or “Appellant”) in support of the Coalition’s Appeal of the certification of the EIR by the San Francisco Planning Commission and other actions to approve or adopt the San Francisco Bicycle Plan Project (“the Project”). Copies of this Comment are provided to each Supervisor. Appellant has previously submitted comments and requests for continuance and recirculation, all of which are incorporated by reference into this Comment, along with the Notice of Appeal.

In June, 2005, after the Board of Supervisors dismissed the Coalition’s public comment and voted unanimously to adopt the Project, the Coalition sued the City, asserting, among other things, that the City failed to conduct environmental review of the Project. The Court ultimately agreed and issued a Peremptory Writ of Mandate ordering the City to comply with the California Environmental Quality Act (“CEQA,” Pub. Res. Code §§21000 et seq.) When, in spite of the litigation, the City continued implementing this Project on several City streets, the Coalition successfully sought a preliminary injunction, which was granted on June 20, 2006, and became a permanent injunction with the Court’s Order of November 7, 2006, and Judgment of June 25, 2007. City’s two attempts to “modify” the Court’s injunction were largely unsuccessful, and the injunction, Judgment, Order, and Peremptory Writ of Mandate remain in effect today.

The massive EIR and thousands of pages of documents certified by the Planning Commission on June 25, 2009, do not comply with CEQA. The EIR does not mitigate or eliminate significant impacts of the proposed Project, fails to disclose a number of the Project’s significant impacts, and does not provide a full range of alternatives to eliminate or mitigate the Project’s impacts.

The Project will eliminate at least 56 traffic lanes on major thoroughfares throughout San Francisco, eliminate more than 2,000 street parking spaces citywide, eliminate parking requirements and parking in existing and new structures, allow bicycles in public transit vehicles, allow bicycle riding on sidewalks, allow bicycles to “take” and occupy traffic and transit lanes, and require slowing all other traffic by designating major streets as “bicycle priority streets” throughout the City, re-route traffic by creating mandatory turn lanes and precluding turning on several major streets, and make many other changes affecting transportation, transit, and public safety.

The Project as proposed will have significant impacts, including but not limited to impacts on transit, traffic, parking, pedestrian safety, air quality, emergency services, and land use. Some impacts are identified in the EIR, but others are not. The EIR consists largely of conclusory statements that are repeated throughout the document, even though such rote conclusions are inadequate as a matter of law.

The EIR fails to disclose the Project’s severe impacts on transit and traffic by improperly piecemealing environmental review into segments of streets and creating thresholds of significance that are unsupported by uniform methodology and standards in violation of CEQA, which requires public review, legislation and substantial evidence supporting such standards. Thus, the EIR falsely concludes that the Project will not have a significant impact on Muni lines on several of the EIR’s street segments unless a bus experiences more than six minutes of delay in each segment. No standard or evidence supports the new six-minute-delay-per segment standard invented by and for the EIR on this Project.

By the same piecemealed review, the EIR unlawfully defers and exempts itself from reviewing substantial pieces of the Project that will have significant impacts, including but not limited to all of the significant impacts from what it categorizes as “long-term improvements” and “minor improvements.” The EIR makes no commitment to future review of any piece of the Project it has failed to review. There is no analysis of air quality impacts from this Project, even though the EIR acknowledges that it will generate serious traffic congestion. Cumulative analysis of the Project’s impacts is totally lacking on transit and parking and is incoherent on traffic impacts. Instead, the EIR and other documents mis-label their conclusions about direct and indirect impacts as “cumulative plus project” impacts.

The EIR falsely claims that the Project’s parking impacts are not significant impacts in San Francisco, summarily exempting itself from analysis and mitigation of the impacts of the Project’s elimination of thousands of parking spaces. CEQA is a state law and San Francisco is subject to its mandates requiring the analysis and mitigation of direct, indirect and cumulative impacts of the Project on parking, including direct and cumulative direct impacts from eliminating parking, as well as impacts on transit, air quality, and human impacts, such as additional time and resources spent searching for and paying for parking. Parking impacts inflict disproportionate harm on working people who cannot afford to live near their jobs in the inflated, high-cost housing market in San Francisco.

The EIR claims that at least 26 of the proposed “near-term projects” will have “significant unavoidable impacts” on traffic and transit that purportedly cannot be mitigated. By creating a circular scenario where nothing except the Project’s own goals are deemed “feasible,” the EIR makes an unsupported claim of “infeasibility” that does not comply with CEQA.

CEQA requires mitigation of each of the Project’s impacts on each of its proposed so-called improvements by either altering the Project or by proposing alternatives, including off-site alternatives that eliminate or reduce the Project’s impacts, including serious analysis of a No Project Alternative to all or parts of the Project. There is no analysis of alternatives in the EIR. The EIR fails to present a full range of alternatives, including off-site alternatives, instead presenting only one alternative and a No Project alternative. The Planning Commission’s and MTA’s “findings” reject as “infeasible” all alternatives except a “preferred project” disclosed after the fact without evidence for their conclusions.

Rote conclusions and unsupported claims of “infeasibility” do not meet CEQA’s requirements. The lead agency, the Planning Department’s Major Environmental Review division (“MEA” or “lead agency”) and MTA’s CEQA Findings are legally inadequate and are unsupported by evidence.

The same is true of the MEA’s and MTA’s statements of overriding considerations. The purported benefits of the Project serve less than one percent of residents and visitors who ride bicycles, while inflicting significant impacts on the other 99% who travel by transit, cars or on foot. The MEA’s and MTA’s CEQA Findings claim without evidentiary support that the benefits to this small minority present overriding considerations to the Project’s significant impacts to the vast majority of travelers. The proposed tradeoff of redesigning public streets and sidewalks to benefit a small minority does not create a social benefit to the general public that justifies a statement of overriding considerations.

The Project’s significant impacts on transit directly conflict with City’s “Transit First” policy. Further, a number of the Project’s proposed improvements are preempted by the California Vehicle Code. The General Plan consistency findings are legally inadequate, because the City’s General Plan is substantially out of compliance with the requirements of the Planning and Zoning Law (Gov. Code §§65000 et seq.), and because the proposed amendments create internal inconsistency in the General Plan. The Project also conflicts with Proposition M, since it will have significant impacts on traffic, parking, and transit.

On June 25, 2009, the Planning Commission adopted a Motion and Resolutions declaring that the EIR on the Project is “adequate, accurate, and objective.” It meets none of these criteria. The EIR does not comply with the requirements of CEQA, and this Board may not re-adopt the same unsupported findings.

This Comment also addresses other actions on the Project that the Board has scheduled for hearing on August 4, 2009, under the improper presumption that it will deny the Appeal of the Project EIR before it has heard this Appeal and made independent findings. The Board’s dismissive predisposition of both this Appeal and the public’s right to appeal violates CEQA.

At every stage of the administrative process, the MEA, the Planning Commission, MTA, and the Board have refused public requests to continue proceedings to allow adequate time to comment on this Project and its voluminous last-minute addenda. Thus the city has, as in 2005, denied the public the opportunity for meaningful participation in the environmental review of this Project, a repeat performance of the behavior that resulted in the successful litigation and injunction against the City.

Significant changes were made to the Project and the EIR on June 11, 2009, upon release of the 678-page Comments and Responses (“C&R”), including eliminating the Project description “options” in the DEIR’s “near-term improvements” (C&R-235-240), changing the Project descriptions and analyses on several segments, (C&R 240-351 and C&R Appendix F, 64 unnumbered pages), and changing the DEIR’s conclusions on significant impact. (C&R-362-375)

On June 25, 2009, after the Planning Commission’s certified the EIR, MEA released a huge document entitled “Supplemental Revision Memo to the Planning Commission” containing substantive changes to the Project and its description and to the EIR’s conclusions, mitigations and alternatives. Those changes required recirculating the EIR. This Appellant asked for recirculation, but the Planning Commission refused in violation of CEQA. (PRC §21092.1; 14 Cal.Code Regs. (“Guidelines”) §15088.5(a).) This Appellant renews the request for recirculation here, both because the Project was significantly changed after the close of public comment, and because the EIR is “so fundamentally and basically inadequate and conclusory in nature that meaningful public review and comment were precluded.” (Guidelines §15088.5(a)(4); Mountain Lion Coalition v. Fish & Game Comm. (1989) 214 Cal.App.3d 1043, 1050-54.)

For these, the following, and other reasons, the Board’s certification of the Project EIR and adoption of proposed legislation would be an abuse of discretion and a failure to proceed in a manner required by law.

Because the Appeal has been scheduled with inadequate time for the public to submit comment and for the Board to make informed decisions and independent findings, and because the legislation has been accelerated and rushed forward on the Board’s schedule, the public has again been denied the right to meaningful participation in administrative proceedings on this Project. Therefore, Appellants do not waive the right to raise issues in any future litigation that may not be covered in this or other public comments and, due to the curtailed timing and refusal to continue proceedings, cannot be held to a strict standard of exhaustion of administrative remedies.

The following are some examples of the legal inadequacies of the EIR and the administrative proceedings.

I. PUBLIC NOTICE HAS BEEN INADEQUATE AND PUBLIC COMMENT HAS BEEN CURTAILED.
Public Notice and Opportunity to Participate in the Environmental Review Process Have been Denied in Violation of CEQA.
The public agencies involved have persistently failed to give adequate and legally required notice of their proceedings. The public comment periods have been cut short, and the public has been denied the opportunity to participate meaningfully in administrative proceedings, including the curtailed public comment period on the massive 1,457-page Draft EIR (“DEIR”), which was not available to the public until December 1, 2008. This Appellant and others sought unsuccessfully prior to the close of public comment on January 13, 2009, to extend the public comment period on the DEIR. CEQA requires a minimum of 45 days for public comment on a project of this magnitude. (footnote #1)

City claims it conducted “community meetings” on the Project. But those meetings were not properly noticed to the public. Instead, they were noticed as a form of “outreach” by the San Francisco Bicycle Coalition (“SFBC”) a special interest group that has a stake in the outcome of the process. The SFBC’s “outreach” publicly funded by grants from public agencies. (San Francisco Bicycle Plan, first page inside cover; and see FN. _?__ herein.) The city has to date refused to provide copies of the notice lists used for that “outreach” or for other public notice requested pursuant to the Public Records Act. Although this Appellant has submitted approximately 40 (forty) requests for public notice of every aspect and document on this Project since 2004, no notice was given to us of any of the purported “community” meetings. Further, this is not a “community” Project but is of citywide and regional magnitude, encompassing major City streets and transportation corridors extending beyond arbitrarily designated “community” boundaries, and the Project’s impacts affect travelers whose destinations may not be on small segments of streets.

Other notices of meetings on the physical implementation of the Project in violation of the Court’s orders and injunction were created by posting a piece of paper on a single telephone pole on selected streets. Those “notices” violate CEQA and the Court’s injunction, November 7, 2006 Order, June 25, 2007 Judgment, and July 25, 2007 Peremptory Writ of Mandate, as well as requirements of public meeting laws and the City’s Sunshine Ordinance.

On June 11, 2009, the MEA issued the 678-page C&R document, again cutting short the public review period by immediately scheduling the Planning Commission hearing on the EIR less than two weeks later, on June 25, 2009. The Final EIR (“FEIR”) then consisted of 2,136 pages in the DEIR and C&R. The C&R made substantive text changes to the EIR as well as compound cross-referenced rebuttals to public comments.

The MEA did not issue its CEQA Findings until June 18, 2009, claiming they were attorney-client privileged before that time! That gave the Appellant and the public less than one week to read and comment on the added 188-page CEQA Findings before the Planning Commission hearing scheduled on June 25, 2009. The CEQA Findings contained complicated, cross-referenced findings on impacts, mitigations, and alternatives, and a statement of overriding considerations, all of which were new material. The time for public review comment on this material and the C&R were clearly inadequate. The agency decisionmakers also could not possibly assimilate these large volumes of complicated material in this inadequate time.

After the June 25, 2009, Planning Commission hearing, the MEA released a 272-page “Supplemental Revision Memo to the Planning Commission,” dated June 25, 2009, which substantively changed the Project description in the EIR, the EIR’s analysis of significant impacts and proposed mitigations, and the Commission’s “CEQA Findings” on the Project. (See “Supplemental Revision Memo to the Planning Commission,” June 25, 2009) The Commission had already adopted CEQA Findings (See, Planning Commission Resolution No. 17913 with Attachment A), and the Commission Secretary certified the Commission’s Resolution. In any event, neither the public nor the agency decisionmakers were given the opportunity to read or consider the last-minute “Supplemental Revision Memo,” which makes substantive changes in the Findings, including findings of “unavoidable” impacts, findings of infeasibility of mitigation, findings on alternatives, and overriding considerations. These changes require recirculation of the EIR and the findings. The alteration of Findings already adopted by the Planning Commission violates CEQA’s requirement of informed decisionmaking and public participation in the decisionmaking process.

One day later, on June 26, 2009, the MTA Board illegally voted to implement a large portion of the Project, including “near-term improvements,” in spite of the appeal process required by CEQA and the San Francisco Administrative Code of the Planning Commission’s certification of the EIR. The MTA Board’s action also violated the Court’s Injunction, November 7, 2006 Order, June 25, 2007 Judgment, and July 25, 2007 Peremptory Writ of Mandate. (See MTA Board Resolutions 09-105 and 09-106) The MTA claims it held meetings to implement pieces of the Project and may continue to do so with no legal notice by simply posting notices on a single telephone pole on affected street segments, the same conduct that led to the Court’s injunction.

Appeals of the Planning Commission’s certification were timely filed on July 15, 2009. The Board scheduled hearing on those Appeals on August 4, 2009, again giving inadequate time for the public to get, review, and comment on the voluminous additions, findings, and revisions created by both MEA and the MTA before the scheduled hearing on the Appeal.

The Board then pulled the legislation on the Project from the Land Use Committee and placed it on the same agenda with the Appeals, thus improperly prejudging the Appeals before they are even heard. The Board must hear and consider this Appeal and make independent written findings before it may consider adopting legislation to approve or implement the Project or to amend the General Plan and City Codes. This Appellant requested both that the Board continue the legislation on the Project and that it continue the hearing on the Appeals. The Board refused, giving no reason for its refusal.

CEQA’s principal mandates of informed and accountable decisionmaking and public participation have been defeated by the repeated refusal of the MEA, the Planning Commission, the MTA Board, and this Board to give the public adequate time to review large volumes of material, to comment, and to meaningfully participate in the environmental review of this Project.

The EIR is Incoherent and Incomprehensible.

The DEIR document is 1,457 pages long, containing an inscrutable morass of compounded, multiple cross-references, which makes it nearly incomprehensible. The Comments and Responses document issued on June 11, 2009 adds another 678 pages, including substantive text changes to the DEIR. The 188-page Findings were not released until June 18, 2009, and are still another mess of encoded, cross-referenced cut-and-paste text that is largely incomprehensible. The “Supplemental Revision Memo to the Planning Commission” dated June 25, 2009, is 272 pages of revised cross-referenced text, changing the Commission’s adopted CEQA Findings and its statement of overriding considerations. The EIR must be readable and accessible to the public and decisionmakers to comply with CEQA’s mandates to inform decisionmakers and the public of the Project’s scope, impacts, and proposed mitigations and alternatives.

The huge volume, complexity and difficulty of navigating these documents defeats CEQA’s purpose to inform decisionmakers and the public of the scope and nature of the Project, its significant impacts, and proposed mitigations and alternatives to eliminate and lessen those impacts. (See, e.g., County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 955 [The public and decisionmakers should not have to cobble together information included in and appended to the EIR. “An EIR requires more than raw data; it requires also an analysis that will provide decision makers with sufficient information to make intelligent decisions.”]; San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, 734-735 [Where the FEIR did not adequately apprise all interested parties of the true scope of the project for intelligent weighing of the environmental consequences of the project, informed decisionmaking was precluded, and certification of the FEIR as complete and adequate constituted an abuse of discretion.])

II. THE EIR’S FRAGMENTED ANALYSIS IMPROPERLY DEFERS AND PIECEMEALS ANALYSIS OF THE PROJECT’S IMPACTS IN VIOLATION OF CEQA.

The EIR separates the Project into a number of components and then segments the Project’s “near-term improvements” into 60 pieces of streets. Such piecemealing violates CEQA. (E.g., Bozung v. LAFCO (1975) 13 Cal.3d 263, 283 (CEQA mandates that “environmental considerations do not become submerged by chopping a large project into many little ones”); Association for a Cleaner Environment v. Yosemite Community College District (2004) 116 Cal.App. 4th 629, 639 [Project may not be “chopped into bite-size pieces to avoid CEQA review.”]; Citizens Association for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 167 [It is a prejudicial abuse of discretion for an agency to evade CEQA compliance by separating the Project’s principal components into two or more parts.]) The Project improperly segments transportation corridors into pieces, minimizing significant impacts that affect the entire corridors, intersections, and parallel streets receiving impacts from the Project’s elimination of traffic lanes and street parking spaces.

By categorizing parts of the Project as “near-term improvements,” “long-term improvements” and “minor improvements,” the EIR improperly segments the Project to minimize impacts and defer or exempt pieces of the Project from environmental review.

The EIR’s deferral of environmental review also violates CEQA. For example, by categorizing a number of major actions as “long-term” improvements, the EIR claims it may (or may not) conduct environmental review of those actions at an unspecified time in the future.

“[A]n EIR must include an analysis of the environmental effects of future expansion or action if (1) it is a reasonably foreseeable consequence of the initial project; and (2) if the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects.” (Laurel Heights Improvement Assn. v. Regents of the University of California (“Laurel Heights I”) (1988) 47 Cal. 3d 376, 396.) The “long-term” actions described in the EIR clearly require environmental review now in the EIR that is before this Board.

III. THE EIR’S PROJECT DESCRIPTION IS LEGALLY INADEQUATE.
By fragmenting the Project description, its omissions and arbitrary categories, the EIR fails to meet CEQA’s basic requirement to inform decisionmakers and the public of the Project’s true character and scope.

An “accurate, stable and finite project description is the sine qua non of an informative and legally sufficient EIR.” (County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 193.) “A curtailed or distorted project description may stultify the objectives of the reporting process. Only through an accurate view of the project may affected outsiders and public decision-makers balance the proposal’s benefit against its environmental costs...” (Id. at 192-193) "A curtailed, enigmatic or unstable project description draws a red herring across the path of public input.” (Id. at 197-198)

The EIR Contains No Description of Major Parts of the Project and Inadequate Descriptions of Other Parts of the Project.
According to the DEIR, the Project “consists of the San Francisco Bicycle Plan; the phasing of implementation of near-term, long-term, and other minor improvements to the bicycle route network; as well as amendments to the San Francisco General Plan (General Plan), the San Francisco Planning Code (Planning Code), and the San Francisco Transportation Code (Transportation Code).” (DEIR, IV.B-2) However, several components of the Project are not included in the EIR’s Project description, while others are not accurately described.

While the EIR generally categorizes the Project as these components---as well as visions, goals, and objectives---it does not provide the basic information necessary to inform decisionmakers and the public of the true scope of the Project. For example, the EIR contains no data on existing traffic volumes and bicycle and pedestrian volumes on the affected streets, no accurate description of proposed legislation, no specific description of the proposed “long-term” pieces of the Project, and no specific information on pieces of the Project that it categorizes as “minor.” Further, the EIR omits from its Project Description the components of the Project consisting of amendments to the General Plan, Planning Code, Transportation Code, and parts of the 2009 Bicycle Plan.

The DEIR states:

Near-term bicycle network improvement projects (near-term improvements) have been designed and are anticipated to be constructed within the next five years following completion of environmental review and approval of the specific project. Long-term bicycle route network improvement projects (long-term improvements) are either proposed along the existing bicycle route network, or consist of potential additions to the bicycle route network at a future date. Specific designs for those long-term projects have not been developed at this time. Minor improvements would include minor pavement marking and signage changes to improve bicycle travel, such as the installation of colored pavement materials, the installation of sharrows (shared roadway bicycle markings), minor changes to parking and traffic lanes configurations, minor changes to intersection traffic signal timing plans, the installation of bicycle boxes at certain intersections, and bicycle parking within the public right-of-way, including bicycle racks on sidewalks meeting certain criteria. (DEIR IV.B-2)

However, these categories do not meet CEQA’s basic requirements to provide an accurate, stable and finite Project description to inform decisionmakers and the public of the scope and potential impacts of the Project. (footnote #2)

Proposed “Near-Term” Physical Changes to City Streets Are Described as “Options” Instead of as Accurate, Stable and Finite Project Descriptions, and the “Options” Were then Changed at the Last Minute, Precluding Public Notice and Review.

The EIR misleads the public and decisionmakers by describing the Project’s “near-term improvements” as segmented “options.” In fact, the EIR’s function is not to offer optional Project descriptions but to establish an accurate, stable, and finite Project description, which is defeated by the shifting data in the purported “options.”

On June 11, 2009, MEA issued the 678-page Comments and Responses (“C&R”) document, which effectively eliminated the segmented “options” on 31 “near-term improvements.” The C&R then changes these “options” descriptions in the DEIR to what it calls a “Preferred Project Design.” (C&R-235) The C&R states that for five other “near-term improvements” a “Preferred Project design has not yet been determined.” (C&R-358) The C&R is silent on the remaining 24 “near-term improvements.”

On June 18, 2009, the MEA, the agency responsible for the Project description in the EIR, issued CEQA Findings that recommend only one “preferred option” for each of the “near-term improvements.” The agency-recommended “options” not surprisingly were consistently those with the most severe negative impacts on traffic, transit and parking.

On June 25, 2009, after the Commission certified the EIR and adopted CEQA Findings, the MEA issued a 272-page “Supplemental Revision Memo to the Planning Commission” in which it substantively changed the Project description in the EIR, the EIR’s analysis of significant impacts, proposed mitigations, and the Commission’s “CEQA Findings” for the Project. (See “Supplemental Revision Memo to the Planning Commission,” June 25, 2009.) The public was given no opportunity to review or comment on these changes. These changes require recirculating the EIR. This Appellant asked for recirculation of the EIR, but the Planning Commission summarily denied that request.

By failing to accurately describe the Project and by piecemealing the Project description, the EIR falsely implies lessened impacts, misleading the public as to true nature of the Project and its significant impacts. The MEA’s last-minute revisions to the Project’s description and the analysis of impacts in the EIR were substantive and precluded meaningful public comment in violation of CEQA.

The shifting Project description and the last-minute changes also violate CEQA’s requirement of an accurate, stable and finite Project description and defeat the public’s right to comment and participate in the environmental review process and administrative proceedings. The entire EIR must be recirculated with accurate information, because the public has not been given the necessary information to comment on the Project.

The EIR Fails to Identify, Analyze and Mitigate Pieces of the Project by Simply Designating Them in the Project Description as “Minor Improvements” Requiring No Review and Mitigation.

The EIR’s Project Description in effect exempts from environmental review all of its designated “minor improvements” by declaring: “These improvements would require minimal physical modifications to the roadway. The aim of this analysis is to provide program-level environmental review of these types of minor physical modifications such as they may be implemented with minimal, if any, additional CEQA documentation.” (DEIR, IV.B-55) In fact, the “minor improvements” include traffic and transit lane sharing, removing street parking, removing traffic lanes, redirecting traffic, slowing traffic through signal timing, installing bicycle racks on public sidewalks, allowing bicycles to occupy traffic lanes ahead of motor and transit vehicles at intersections (“bicycle boxes”), and other changes that may have significant impacts on traffic, transit, parking, air quality, congestion, noise, public safety, and open space, and must be analyzed under CEQA.

By simply describing these parts of the Project as “minor,” the Project Description violates CEQA’s requirements of analysis and mitigation of the Project’s impacts.

The EIR Fails to Accurately Describe, Analyze and Mitigate the “Long-Term Improvements.”

The EIR states that the Project’s “long-term improvements” are “either proposed along the existing bicycle route network, or consist of potential additions to the bicycle route network at a future date. Specific designs for those long-term projects have not been developed at this time.” (DEIR IV.B-2) The EIR then claims that “long-term improvements are evaluated in this EIR at a program-level. Impacts of these improvements are evaluated with regard to the Proposed Project footprint, and may require further project level analysis in separate environmental review processes once specific project descriptions are developed.” (DEIR IV.B-57) Thus, by omitting an accurate, coherent description of the “long-term improvements,” the EIR unlawfully defers environmental review of their impacts in violation of CEQA.

The EIR’s Project Description claims ignorance of the particulars of the proposed “long-term improvements,” (DEIR IV.B-57) However, in another section, the EIR includes numerous proposals for more major changes to streets throughout San Francisco as “long-term improvements.” (DEIR V.A.5-1) These major “long-term improvements” include nearly the entire length of Geary Boulevard, Battery Street, Golden Gate Avenue, Stanyan Street, Oak Street, Capp Street, Shotwell Street, Industrial street, Monterey Boulevard, Holloway Avenue, Lee Avenue, Harold Avenue, Brotherhood Way, Persia Avenue, Mansell Street, Mission Creek, Jennings Street, Industrial street, Crisp Road, Underwood street, Carroll Street, Gilman Avenue, Hunter’s Pont, Alana Street, Harney Street, Bay Trail, and Pier 70. (Fig. V.A.5-1, and V.A. 5-4 - V.A.5-17)

The “long-term improvements” include: Installation of bicycle lanes, narrowing and removal of travel lanes; sharrows, modifications to bus zones, modifications to parking configurations, changes to “locations and configurations of curbs sidewalks and medians,” widening of roadways and narrowing of sidewalks, reconfiguration of intersections to improve bicycle crossings, including installation of bicycle boxes and bicycle traffic signals, installation of traffic calming devices, including designating bicycle boulevards that prioritize bicycle travel over other transportation modes, and designation of shared bicycle and transit lanes. (V.A.5-3)

Thus, by not including a coherent description of the proposed “long-term improvements" and professing that it does not know where they are located, the EIR defers meaningful environmental review of their impacts. The EIR then specifically describes the planned changes, but makes no effort to analyze, mitigate, or offer alternatives to their impacts.

The EIR Fails to Accurately, Coherently, and Completely Describe the Proposed Amendments to the General Plan, Planning Code, and Transportation Code.

The EIR includes no coherent description of the proposed amendments to the General Plan, Planning Code and Transportation Code, even though it acknowledges that they are part of the Project. (DEIR, IV.B-2) These documents are not included in the EIR and were not publicly available before the Planning Commission certified the EIR, and some are still unavailable for public review.

The proposed legislation mandates physical and policy changes that will have significant direct, indirect, and cumulative impacts on the environment. For example, the proposed Ordinance amending the General Plan declares that many City streets and thoroughfares are “bicycle priority” streets, requiring that bicycles be prioritized as the primary mode of transportation on those streets as a matter of public policy. (E.g., Proposed Ordinance, BOS File No. 090867) Many other changes are proposed in the legislation that mandate changes in transportation and the physical configuration of city streets that require CEQA review. The proposed amendments will affect parking, traffic, and transit, and must be analyzed and mitigated to comply with CEQA.

By omitting these parts of the Project from the EIR’s Project description and from analysis and mitigation, the EIR effectively exempts them from public comment and environmental review. The specific pieces of legislation must be included in the EIR’s Project description with specific analyses of their impacts. Instead, the EIR contains no specific description of the content of the legislation.

The Project Description Fails to Include the “San Francisco Bicycle Plan,” Which Was Unavailable to the Public before Close of Public Comment.
The MTA did not issue the latest version of the “San Francisco Bicycle Plan” (“the Plan”) until after the close of public comment on the EIR, which was supposedly conducting environmental review of that document to comply with the Court’s orders. The Plan document was apparently issued in a draft form on April 30, 2009, but was not issued in a final form until June 26, 2009, after the Planning Commission certified the EIR. The EIR’s Project description contains only sketchy generalizations about the Plan, referring to it as “policies.”

The EIR’s Project description admits:

These policies would have an impact on the future direction and implementation of improvements throughout the City’s bicycle route network, and would also affect areas currently outside the bicycle network, which could be affected by future bicycle route network changes...While adoption of the policy may not appear to have potential to cause direct or indirect impacts to the physical environment, future policy-based projects could include alteration with a potential to affect the environment. Such projects would require environmental analysis prior to their approval, unless the specific project in question has been analyzed as part of the current Bicycle Plan EIR, or as part of some other approved environmental plan document. (DEIR, IV.B-50 - 51)

Thus, the EIR improperly defers or exempts from environmental review admitted, known impacts of the Project. The EIR’s failure to properly describe and analyze the changes proposed by the Project, including its amendment of the General Plan and City Codes, thus improperly defers analysis of known impacts to a future date without committing to a review or the mitigation of those impacts. This Project description is both false and misleading in understating the scope and nature of the “2009 Project” and in deferring analysis of “future policy-based projects” and “such projects” to some other time, while building into the Project Description an illegal exception to any environmental review.

The EIR must include an accurate, stable, and finite description of the whole Project, including each of its components.
The Plan contains mandates that change the physical environment of the city that will have significant impacts, including many that are not described or analyzed in the EIR, such as a complete re-mapping of the streets of San Francisco to include the proposed “Bicycle Route Network,” (Plan, 1-1 thru 19, App.1-1, 2-1 thru 2-14); eliminating Level of Service (“LOS”) as the standard for environmental review of all projects in San Francisco (Plan, 1-24-25); mandating “bicycle boulevards” that exclude other modes of transportation (Plan, 1-25); shared lane markings that do not comply with the Manual of Uniform Traffic Control Devices (MUTCD); eliminating parking in existing and newly constructed buildings (Plan, e.g., 2-5 thru 2-15); allowing bicycling on sidewalks (Plan, 7-7); requiring bicycle parking on public sidewalks (Plan, 2-5 thru 2-15); permitting bicycles on Muni and all SFMTA transit vehicles (Plan, 3-2 - 3-3); rewarding illegal bicycle behavior by creating more bicycle traffic amenities (Plan, 5-5); rolling General Plan amendments without environmental review (Plan, 7-2 thru 7-3); and requiring public funding of bicycle “improvements” (Plan, 8-4 thru 8-11).

None of these components of the Project in the Plan document are described or analyzed in the EIR. Their omission and the failure of the EIR to mitigate the significant impacts of these components of the Project violates CEQA.

The latest Bicycle Plan document corresponds to the “Framework document” that the Superior Court has ordered reviewed, making this omission in the EIR even more egregious.

Project Documents, Including the Bicycle Plan Itself, and the Proposed Amendments to the General Plan, Planning Code, and Transportation Plan, Were Unavailable to the Public Until Long After the Close of Public Comment on January 13, 2009.
According to the DEIR, the Project “consists of the San Francisco Bicycle Plan; the phasing of implementation of near-term, long-term, and other minor improvements to the bicycle route network; as well as amendments to the San Francisco General Plan (General Plan), the San Francisco Planning Code (Planning Code), and the San Francisco Transportation Code (Transportation Code).” (DEIR, IV.B-2)

However, that version of the San Francisco Bicycle Plan was not released until April 30, 2009, and was not available to the public until after the Planning Commission’s certification of the EIR on the Project. Still another version was created after that certification of the Project that includes this document as a component. (See, June 26, 2009, “2009 San Francisco Bicycle Plan”)

The proposed amendments to the General Plan, Planning Code, and Transportation Code still have not been provided to the public after numerous requests. These components of the Project were unavailable during the public comment period on the DEIR (December 1, 2008 - January 13, 2009).

The failure to make these components of the Project available during the public comment period defeats CEQA’s mandate of informed public participation in the environmental review process.

III. THE EIR’S DESCRIPTION OF EXISTING CONDITIONS (BASELINE) IS INCOMPLETE AND INACCURATE.
The EIR fails to accurately set forth the existing conditions (“baseline”) and to include data necessary to determine whether the Project will have significant impacts on the environment, precluding accurate assessment and mitigation of the Project’s impacts in violation of CEQA. “Before the impacts of a project can be assessed and mitigation measures considered, an EIR must describe the existing environment. It is only against this baseline that any significant environmental effects can be determined.” (County of Amador v. El Dorado County Water Agency (1999) 76 Cal. App.4th 931, 952; and see Guidelines §§15125, 15126.2(a).) Without an adequate baseline description, “analysis of impacts, mitigation measures and project alternatives becomes impossible.” (County of Amador, supra, 76 Cal.App.4th at 953)

The EIR Contains No Definitions or Standards for Its Categories of Bicycle, Pedestrian, and Traffic Volumes.
The EIR’s Project and Setting descriptions include no data on the volume of motor vehicle traffic on various streets, the volume of bicycle traffic, and the volume of pedestrian traffic. Bicycle volume is characterized as “low,” “moderate” or “high” without defining these terms anywhere in the EIR. In fact, the Appellant only received those definitions after a Public Records Act Request. The E-mail states:

The following criteria were created for the low, median, and high description of bicycle and pedestrian volumes. We received both bicycle and pedestrian volumes from SFMTA (emailed earlier). These volumes were for the intersection as a whole, not divided by approach.

Bicycle volumes
Low - 1-100 bicycle per hour (less than 2 bicycles per signal cycle in all
directions in the peak direction)
Median - 100-250 bicycles per hour (equal or less than 4 bicycles per
cycle in all directions in the peak direction)
High - larger than 2500 bicycles per hour (larger than 4 bicycles
per cycle in all directions)
Pedestrian volumes
Low - 1-1,000 pedestrians per hour
Median - 1,000-2,000 pedestrians per hour
High - larger than 2,000 pedestrians per hour
In the absence of directional split for the volume data we received, we used the most conservative approach to estimate LOS of pedestrian flow---assuming all pedestrian volumes counted are from one approach. With this most conservative approach, it shows that 1,000 pedestrians per hour on a 5-foot clear pathway, the flow rate would be 3.3 pedestrians per minute per foot, which is equivalent to LOS B. At 2,000 pedestrians per hour on a 5-foot clear pathway, the flow rate would be 6.7 pedestrians per minute per foot, which is equivalent to LOS C-D.

(Attachment: E-mail from Chi-Hsin Shao, CHS Consulting Group to debra.dwyer@sfgov.org., February 27, 2009)

The “bicycle volumes” data are judged by a completely different standard than the pedestrian volume data, and the traffic volumes are not stated at all in the EIR. None of this essential information is included in the EIR’s existing conditions descriptions or anywhere else in the EIR. This impromptu, slippery “methodology” does not conform to any uniform standard for counting traffic. It is arbitrary and invalid on its face, because it sets thresholds that must be established by the publicly accountable process set forth in CEQA and supported by substantial evidence. (Guidelines §15064.7)

The Volume of Bicycle Traffic is too Low to Justify the Project.

In fact, the EIR states the volumes of bicycles are “low,” “generally low,” or “generally low to moderate,” on 41 of the 60 proposed “near-term projects,” many of which will have significant impacts on traffic, transit and parking, including the following DEIR descriptions:

1-1: “low” (V.A.3-25, Project 1-1)
1-2: “low (V.A.3-27)
1-3: “low to moderate” (V.A.3-30)
2-1: “generally low” (V.A.3-47)
2-2: “generally low” (V.A.3-50)
2-3: “generally low to moderate” (V.A.3-53)
2-4: “ generally low to moderate” (V.A.3-55)
2-5: “generally low” (V.A.3-56)
2-6: “typically low” (V.A.3-58)
2-7: “currently low to moderate” (V.A.3-59)
2-8: “typically moderate. . . except during the PM peak period when they are high” (V.A. 3-61)
2-9: None given. (V.A.3-62)
2-10: “high in the eastbound direction during the AM peak hour and in the westbound direction during the PM peak hour.” (V.A.3-63)
2-11: “high in the eastbound direction during the AM peak hour and in the westbound direction during the PM peak hour.” (V.A.3-66)
2-12: “high in the eastbound direction during the AM peak period and in the westbound direction during the PM peak period.” (V.A.3-68)
2-13: “generally low.” (V.A.3-69)
2-14: None given. (V.A.3-70)
2-15: “low to moderate.” (V.A.3-71)
2-16: “generally moderate with higher volumes during the AM and PM peak periods and midday between 2nd and 4th Streets and between 7th and 8th Streets.” (V.A.3-74)
3-1: “high during weekday AM (about 170 per hour) and PM peak periods and on weekends.” (V.A. 3-84)
3-2: “generally low” (V.A. 3-87)
3-3: “generally low” (V.A.3-89)
3-4: “generally moderate” (V.A.3-90)
3-5: “high during commute periods and on weekends...At other times...generally low” (V.A.3-91)
3-6: “moderate to high” (V.A.3-93)
4-1: None given (V.A.3-100)
4-2: “low” (V.A.3-101)
4-3: “generally low” (V.A.3-102)
4-4: “low” (V.A.3-103)
5-1: “low to moderate” (V.A.3-121)
5-2: “generally low” (V.A.3-123)
5-3: None given (V.A. 3-125)
5-4: “very low” (V.A.3-128)
5-5 “generally low” (V.A.3-129)
5-6: “generally low” (V.A.3-132)
5-7: “generally low to moderate” (V.A.3-134)
5-8: “low” (V.A.3-135)
5-9: “generally low” (V.A.3-138)
5-10: “moderate to high” (V.A.3-139)
5-11 “low to moderate” (V.A.3-140)
5-12: “generally low” (V.A.3-142)
5-13: “generally low” (V.A.3-143)
6-1: “generally low” (V.A.3-150)
6-2: “generally low” (V.A.3-152)
6-3: None given (V.A.3-154)
6-4: “typically low” (V.A.3-155)
6-5: “generally low” (V.A.3-157)
6-6: “generally low” (V.A.3-160)
7-1: “low on a typical weekday and moderate on weekends.” (V.A.3-169)
7-2: “approaching Lincoln Way are low to moderate on weekdays and moderate to high during the weekend.” “along the rest of the corridor are low to moderate.” (V.A.3-171)
7-3: “low to moderate on weekdays and higher on weekends and near the Cliff House.” (V.A.3-173)
7-4: “relatively low on weekdays and moderate to very high on good weather weekends and in the summer” (V.A.3-175)
7-5: “generally low” (V.A.3-176)
7-6: “generally high during weekends, especially during summer months, and typically moderate at other times.” (V.A.3-177)
8-1: “generally low to moderate” (V.A.3-184)
8-2: “generally low” (V.A.3-185)
8-3: “generally moderate in the vicinity of the SFSU campus west of 19th Avenue and low east of 19th Avenue.” (V.A.3-186)
8-4: “relatively low during weekdays but moderate to high on weekends for recreation.” (V.A.3-187)
8-5: “generally low in the area during the weekdays but typically higher on weekends and on the first Wednesday of each month when the San Francisco Zoo is free to visitors.” (V.A.3-189)

The EIR contains no bicycle counts and no explanation of the methodology used to determine the categories described as “low,” “generally low to moderate,” “very low,” “typically low,” “relatively low,” “generally low,” “moderate,” etc.

That missing data is essential to identify the Project’s impacts and to inform decisionmakers and the public of the feasibility of mitigation and alternatives to those impacts, and so that informed decisions can be made on the tradeoffs between the Project’s benefits and adverse impacts.

The Volumes of Bicycle and Other Traffic Are Not Quantified in the EIR.
The EIR contains no quantified bicycle volumes, traffic volumes, transit volumes, or pedestrian volumes---crucial information for identifying the Project’s impacts on traffic, transit, and pedestrian safety. Instead, the EIR uses undefined standards to categorize existing traffic volumes, bicycle volumes and pedestrian volumes. Bicycle volumes are described, if at all, only as “low,” “moderate” or “high.” CEQA requires including this data in the EIR to identify, analyze and mitigate the Project’s impacts, as well as to analyze the feasibility of mitigations and alternatives, and to weigh the Project’s significant “unavoidable” impacts against its purported benefits.

Bicycle counts provided pursuant to Appellant’s Public Records Act (“PRA”) requests fail to describe any coherent methodology, instead reflecting impromptu counts extending for more than one hour at various times, counting every bicycle in view regardless of direction, and conducted without standard dates, times, and attribution. A count used to establish bicycle “volumes” on streets described in the 2008 State of Cycling Report is incomplete, with results that differ from those produced pursuant to the Appellant’s PRA requests, and are dubiously based on counts taken at “Energizer Stations” on the annual “Bike to Work Day” event conducted by the San Francisco Bicycle Coalition. (footnote #3) The EIR makes no effort to explain the “methodology” used or to describe an accepted standard methodology for counting bicycle traffic.

Based on U.S. Census data, the San Francisco County Transportation Authority (“SFCTA”) has established that the proportion of travelers actually using bicycles for “all trips” in San Francisco is less than one percent, and for internal trips within San Francisco is 1.0%. (SFCTA: Countywide Transportation Plan, July, 2004, p.39) In contrast, the mode share for autos is 62.2% of all trips and 54.2% of all internal trips; for transit it is 17.2% of all trips and 16.4% of all internal trips; and for walking it is 19.7% of all trips and 28.3% of internal trips. (Id.)

Actual traffic volumes are not included in the EIR, an egregious omission that precludes objective analysis and mitigation of the Project’s impacts, or comparison of vehicle and transit traffic volumes with bicycle traffic volumes. The adequacy of the EIR as a document informing the public and decisionmakers requires this essential information in the text of the EIR. (footnote #4)

The EIR Fails to Describe the Percentage of Bicyclists who Meet the Definition of “Commuters.”

The California Streets and Highways (“S&H”) Code defines A “bicycle commuter” as “a person making a trip by bicycle primarily for transportation purposes, including, but not limited to, travel to work, school, shopping, or other destination that is a center of activity, and does not include a trip by bicycle primarily for physical exercise or recreation without such a destination.” The EIR provides no data on the number of bicyclists who meet this definition, which is required for the Project’s stated goal of receiving State highway pork money. (DEIR, IV.B-1) In fact, the City’s State of Bicycling Report states that 36% of bicycle trips are made for “Fitness/Exercise” or “Leisure,” while another 25% of bicycling trips are for “Shopping.” Only 28% of bicycle trips are “Work or Work Related.” The demographic of bicycle users is largely dominated by white males. (MTA: 2008 San Francisco State of Cycling Report, pp. 10, 12) Bicycling for recreation or exercise does not qualify as “commuting” under the Streets and Highways Code. (S&H Code, §§ 890, 891, et seq)

Without this data, the EIR does not meet CEQA’s requirement of an accurate, stable and finite Project description, does not provide an accurate baseline, and does not meet the requirement of the Streets and Highways Code to quantify the number of commuting bicyclists in order to claim that the Project is a “Bicycle Transportation Plan” to receive state money under provisions of the Streets & Highways Code. (E.g., S&H Code §891.2(a)[requiring “The estimated number of existing bicycle commuters in the plan area and the estimated increase in the number of bicycle commuters resulting from implementation of the plan.”].)

IV. THE EIR FAILS TO IDENTIFY AND ANALYZE THE PROJECT’S SIGNIFICANT IMPACTS.
The purpose of an EIR is to identify the significant effects of a Project on the environment, to identify alternatives to the Project, and to indicate the manner in which those significant effects can be mitigated and avoided. (Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099, 1106)

The EIR Fails to Identify and Analyze the Direct, Indirect, and Cumulative Impacts of Removing at least 56 Traffic Lanes.
Because the EIR fragments its Project description, its analysis of “near-term” parts of the Project is distorted, since it finds no impacts on isolated street segments, and fails to analyze the Project’s actual direct impacts to longer stretches and surrounding streets. Such piecemealing of environmental review has been consistently rejected by the Courts.

The EIR admits that it does not contain any analysis of spillover traffic, an inevitable impact of eliminating traffic lanes and parking and installing forced turn lanes. That omission defeats cumulative analysis of the Project’s impacts on traffic, transit and parking in violation of CEQA. The EIR contains no meaningful analysis of the cumulative impacts of the Project’s elimination of traffic lanes on surrounding areas in violation of CEQA.

The EIR Fails to Identify and Analyze the Project’s Direct, Indirect, and Cumulative Impacts on Public Transit.
The EIR fails to properly disclose, analyze and mitigate the Project’s direct, indirect and cumulative impacts on transit, even though buses will clearly be delayed by the Project’s eliminating traffic lanes and parking, requiring transit and cars to share lanes with bicycles, and allowing bicycles on board transit vehicles. By segmenting streets and Muni routes in small increments and creating an unsupported threshold of significance that requires a delay of more than six minutes per segment, the EIR downplays the Project’s serious impacts on transit.

Instead of using LOS measurements, the EIR evaluated only twelve “transit study corridors” and ten “transit spot study locations.” (DEIR V.A.3-8 - 3-10) The total transit vehicle delay was “assumed to be comprised of” three elements:

“Transit Travel Delay,” defined as “the additional time experienced by a transit vehicle as it travels between stops across one or more intersections in the corridor due to congestion caused by other vehicular traffic traveling parallel or perpendicular to the transit flow."

“Transit Reentry Delay,” is defined as “the wait for a sufficient gap in traffic flow to allow a bus to pull back into the travel lane.” [and] “Transit/Bicycle Delay,” is defined as “the added time caused by the interaction between bicycles and transit vehicles as buses pull in or out of the bus stops.” (DEIR, V.A.3-15)

However, as to “Transit/Bicycle Delay,” the EIR states, “Thorough analyses of the interaction between transit vehicles and bicycles operating on a parallel path do not exist,” and "the presence of bicycles is not accounted for in the calculation of the capacity reduction coefficients and it is assumed not quantifiable for the purposes of this study.” (DEIR, V.A.3-18) Thus, by creating an arbitrary standard and then stating it is not “quantifiable,” the EIR exempts itself from identifying, analyzing and mitigating the impacts of bicycles on bus travel when bicycles occupy traffic lanes.

The EIR irrelevantly states: “The project would have a significant effect on the environment if it would cause a substantial increase in transit demand that could not be accommodated by adjacent transit capacity, resulting in unacceptable levels of transit service or cause a substantial increase in operating costs or delays such that significant adverse impacts to transit service levels could result. The Bicycle Plan would not impact transit demand. Therefore, the focus of the transit impact analysis was on transit delay.” (DEIR, V.A.3-190)

The EIR then creates a threshold of significance from whole cloth: “A near-term improvement would have a significant impact on transit if one of the following is true: 1) For transit lines where the headway is greater than six minutes, the sum of the delay in both directions is equal to or greater than six minutes. 2) For transit lines where the headway is equal to or less than six minutes, the impact is significant if the sum of delay in both directions is equal to or greater than the headway of the affected transit line.” (DEIR,V.A. 3-191)

The EIR contains no explanation of how it derived the six-minute per segment threshold. CEQA requires that thresholds of significance for general use by a lead agency in environmental review must be adopted by ordinance or other legislation, must be developed through a public review process, and must be supported by substantial evidence. (Guidelines §15064.7) Instead, the EIR’s threshold of significance of six minutes is arbitrary and calculated to evade analysis and mitigation of the Project’s obvious impacts on transit as a consequence of eliminating traffic lanes and parking lanes.

Under the EIR’s flawed methodology, if a segment transit delay is less than six minutes, the EIR concludes that there is no significant impact on transit. A Muni line that travels through several segments could thus experience hours of delays with no disclosed significant impacts.

The EIR contains only this analysis by segments, thus failing to disclose the Project’s significant impacts on transit, minimizing the few impacts it does disclose on only six segments of the “near-term improvements.” (footnote #5)

The EIR contains no analysis of the Project’s cumulative impacts on transit where transit riders might travel outside the segments in the EIR, transfer to reach their destination and be delayed on more than one bus line. The EIR also contains no calculation of the impacts over time on riders who commute to jobs daily. For example a rider experiencing a twenty-minute delay traveling over several segments in both the AM and PM commute hours would experience a 40-minute daily delay or a 200-minute (3 hours and twenty minutes) delay over a 5-day work week. The EIR contains no analysis of the number of riders affected. This type of analysis is omitted from the EIR and leads to a misleading result that minimizes the Project’s impacts on transit-riders.

By segmenting the analysis of impacts on transit, the EIR improperly predetermines and minimizes the Project’s obvious impacts on transit. The EIR’s unlawful segmentation of environmental review also leads to its false conclusions. These are serious flaws that invalidate the EIR as an informational document and for the central purpose of mitigating the Project’s significant impacts. “[T]he ultimate decision of whether to approve a project, be that decision right or wrong, is a nullity if based upon an EIR that does not provide the decision-makers and the public with the information about the project that is required by CEQA.” (Santiago County Water Dist. v. County of Orange (1981) 118 Cal.App.3d 818, 829)

The EIR also omits any analysis of delays and public safety impacts caused by allowing bicycles on board transit vehicles.

Further, the Project’s adverse impacts on public transportation clearly conflict with City’s “Transit First” policy.

The EIR Fails to Identify and Analyze the Project’s Direct, Indirect, and Cumulative Impacts from Eliminating More than 2,000 Parking Spaces.
The EIR’s Project description and baseline descriptions of existing parking make analysis of parking impacts impossible. The C&R document released on June 11, 2009, after the close of public comment, contains modifications to the Project description that remove several hundred more parking spaces than the Project descriptions in the DEIR. Both documents simply repeat the false and unsupported conclusion that parking is “not an impact” in San Francisco and that the Project need not analyze and mitigate the Project’s significant impacts on parking.

The EIR claims that parking is not an impact in San Francisco, and excludes parking impacts from its “Summary of Significant Impacts and Mitigation Measures” (DEIR, ES-1 - 75; and see DEIR, pp. V.A.3-189- 3-190).

The EIR states:

San Francisco does not consider parking supply as part of the permanent physical environment. Parking conditions are not static, as parking supply and demand varies from day to day, from day to night, from month to month, etc. Hence, the availability of parking spaces (or lack thereof) is not a permanent physical condition, but changes over time as people change their modes and patterns of travel. (DEIR, V.A.3-189, repeated at 3-330, 3-387, 3-428, 3-447, 3-476, 3-494, 3-500, 3-503, 3-584, 3-609, 3-615, 3-620; and C&R-8 - 9, 255, 270, 291, 292, 300, 304, 318, 322, 325, 331)

This conclusion is unsupported and spurious. Under this rationale, air quality, noise, and many other impacts would be exempt from environmental review. CEQA’s definition of the “environment” includes parking spaces. (PRC §21060.5 [Environment “means the physical conditions which will be affected by a proposed project, including land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic significance.”].) CEQA requires an accurate statement of the existing conditions (baseline) including, at minimum, the number of existing available parking spaces, the number of those spaces typically occupied at all times, and the number of parking spaces that will be removed by other projects in an area. CEQA then requires analysis of the impacts of the Project using the baseline conditions to project its impacts.

The EIR then claims that “Parking deficits are considered to be social effects, rather than impacts on the physical environment as defined by CEQA. Under CEQA, a project’s social impacts need not be treated as significant impacts on the environment.” (DEIR, V.A.3-189, repeated at 3-330-331, 3-387, 3-428, 3-448, 3-476, 3-494, 3-500, 3-584, 3-609, 3-615, 3-620; and C&R 8-9, 255, 270, 291, 292, 300, 304, 318, 322, 325, 331) This unsupported conclusion is inadequate as a matter of law, and is irrelevant to the impacts caused by the Project.

Existing parking deficits must be stated as baseline conditions in the EIR. This Project’s “near-term improvements” will eliminate at least 1,914 parking spaces on city streets, on top of already existing parking deficits. The Project additionally proposes to eliminate parking in private and public buildings.

The EIR then states:

Environmental documents should, however, address the secondary physical impacts that would be triggered by a social impact (CEQA Guidelines Section 15131(a)). The social inconvenience of parking deficits, such as having to hunt for scarce parking spaces, is not an environmental impact, but there may be secondary physical environmental impacts, such as increased traffic congestion at intersections, air quality impacts, safety impacts, or noise impacts caused by congestion. In the experience of San Francisco transportation planners, however, the absence of a ready supply of parking spaces, combined with available alternatives to auto travel (e.g., transit service, taxis, bicycles or travel by foot) and a relatively dense pattern of urban development, induces many drivers to seek and find alternative parking, shift to other modes of travel, or change their overall travel habits. Any such resulting shifts to transit service, walking, and bicycling would be in keeping with the City’s ‘Transit First" policy. The City’s Transit First Policy, established in the City’s Charter Section 16.102 provides that "parking policies for areas well served by public transit shall be designed to encourage travel by public transportation and alternative transportation." (DEIR, V.A.3-189, repeated at 3- 195, 3-331, 3-387, 3-428-429, 3-448, 3-477, 3-481, 3-494, 3-500, 3-584, 3-609, 3-615, 3-620; and C&R 8-9, 255, 270, 291, 292, 300, 304, 318, 322, 325, 331)

This Appellant requested all supporting data for these conclusions in the EIR, and in response received a letter from the City’s Environmental Review Officer, Bill Wycko. Appellant reviewed the ancient documents cited by Mr. Wycko, and found they contained nothing to support the conclusions on parking in the EIR. [6]

The EIR then concludes without any supporting evidence:

The transportation analysis accounts for potential secondary effects, such as cars circling and looking for a parking space in areas of limited parking supply, by assuming that all drivers would attempt to find parking at or near the project site and then seek parking farther away if convenient parking is unavailable. Moreover, the secondary effects of drivers searching for parking is typically off-set by a reduction in vehicle trips due to others who are aware of constrained parking conditions in a given area. Hence, any secondary environmental impacts which may result from a shortfall in parking in the vicinity of the proposed project would be minor and the traffic assignments used in the transportation analysis, as well as in associated air quality, noise, and pedestrian safety analyses, reasonably address potential secondary effects.(DEIR, V.A.3-190, repeated at 3-331, 3-387, 3-429, 3-448, 3-477, 3-481, 3-494, 3-501, 3-584, 3-609, 3-615, 3-620’ and C&R 8-9,255, 270, 291, 292, 300, 304, 318, 322, 325, 331)

These same statements are routinely tacked onto every EIR produced by the City of San Francisco, even though no evidence exists to support these rote conclusions. Unsupported rote conclusions are inadequate as a matter of law to satisfy the requirements of CEQA.

Contrary to the EIR’s statement, its “transportation analysis” contains no analysis that “accounts for potential secondary effects.” (DEIR, V.A.3-190) The DEIR’s conclusion that “any secondary environmental impacts which may result from a shortfall in parking in the vicinity of the proposed project would be minor,” is an unsupported conclusion in violation of CEQA.

The conclusory statements cited above are the only statements on parking in the EIR, and render the EIR a legally inadequate document that does not fulfill its requirement to inform the public and decisionmakers, and to mitigate the Project’s significant impacts.

Impacts on parking are direct, indirect and cumulative environmental impacts under CEQA. (See, e.g., Friends of “B” Street v. Cit of Hayward (1980) (Loss of on-street parking “indicated that a finding of significant environmental effect was mandatory.” ); Sacramento Old City Assn. v. City Council of Sacramento (1991) 229 Cal.App.3d 1011, 1028 (“[T]raffic and parking have the potential...of causing serious environmental problems.”); San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.app.4th 656, 696-98, Fn.24 (Parking deficits were significant impact requiring mitigation). San Francisco is not above state law, and the Project’s impacts on parking are not just about existing “parking shortfalls” or “deficits” but are about eliminating parking spaces on public streets and in public and private buildings. Further, indirect impacts must also be analyzed and mitigated to comply with CEQA. CEQA also recognizes that effects on the business environment are economic and social changes that can be used to determine that a physical change is a significant effect on the environment. (Guidelines §§15064(e).) The Pubic Resources Code section 21083(b)(3) requires finding that a project may have a significant effect on the environment if it will cause substantial adverse effects on human beings, either directly or indirectly. Lack of parking is also recognized as a “Physical and economic condition...that cause[s] blight.” (Cal.Health & Safety Code §33031(a)(2); Evans v. City of San Jose (2005) 128 Cal.app.4th 1123, 1149-50). CEQA recognizes that the potential to indirectly cause urban blight is a significant impact on the environment. (Bakersfield Citizens for Local Control v. City of Bakersfield (2004)124 Cal.App.4th 1184, 1204-05)

The EIR Fails to Identify and Analyze the Project’s Direct, Indirect, and Cumulative Impacts from Redirecting Traffic.
Although the EIR’s near-term and long-term pieces of the Project call for reconfiguring many intersections, the EIR contains no analysis of the impacts of eliminating turn lanes or creating mandatory turn lanes.

The EIR Fails to Identify and Analyze the Project’s Direct, Indirect, and Cumulative Impacts of Amending the General Plan, Planning Code, and Transportation Code.
The EIR contains no analysis of the direct, indirect and cumulative impacts of proposed amendments to the General Plan, Planning Code, and Transportation Code.

The EIR Fails to Identify and Analyze the Significant Direct, Indirect, and Cumulative Impacts of the “2009 Bicycle Plan.”
Since it contains no description of the contents of the Plan, the EIR excuses itself from analyzing its impacts.

The EIR first simply declares that “the act of adopting the policy allowing for the implementation for these improvements is a purely administrative activity and would have no direct impact on the physical environment.” (DEIR V.A.2-5) This is the wrong standard for analyzing impacts of General Plan and Code Amendments, and it violates CEQA, which requires analysis and mitigation of the impacts of such amendments.

The EIR’s Project description admits:

These policies would have an impact on the future direction and implementation of improvements throughout the City’s bicycle route network, and would also affect areas currently outside the bicycle network, which could be affected by future bicycle route network changes...While adoption of the policy may not appear to have potential to cause direct or indirect impacts to the physical environment, future policy-based projects could include alteration with a potential to affect the environment. Such projects would require environmental analysis prior to their approval, unless the specific project in question has been analyzed as part of the current Bicycle Plan EIR, or as part of some other approved environmental plan document.” (DEIR, IV.B-50 - 51)

The EIR thus improperly defers or exempts from environmental review admitted, known impacts of the Project. The EIR’s failure to properly describe and analyze the changes proposed by the Project, including its amendment of the General Plan and City Codes, thus improperly defers analysis of known impacts to a future date without committing to a review or the mitigation of those impacts. Because the Project description is both false and misleading in understating the scope and nature of the Project and deferring analysis of “future policy-based projects” and “such projects” to some other time, it builds into the Project description an illegal exception to any environmental review.

The failure to analyze the 2009 Plan is even more egregious, because it corresponds closely to the “Framework document” that the Court explicitly ordered reviewed in its November 7, 2006 Order, its June 25, 2007 Judgment, and its July 25, 2007 Peremptory Writ of Mandate.

The EIR Fails to Disclose the Direct, Indirect, and Cumulative Impacts of the Project’s Proposed “Long-term improvements.”

The EIR improperly defers analysis of the impacts of proposed “long-term projects” within the Project.

“[A]n EIR must include an analysis of the environmental effects of future expansion or action if (1) it is a reasonably foreseeable consequence of the initial project; and (2) if the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects.” (Laurel Heights Improvement Assn. v. Regents of the University of California (“Laurel Heights I”) (1988) 47 Cal. 3d 376, 396).

The EIR admits that four “unavoidable impacts...could result from long-term improvements.” (DEIR V.A. 2-6) Those impacts are “identified at the program level” as “Potential reduction in roadway capacity and increased traffic delays; reduction in the number of travel lanes could subject vehicles, including transit using the affected roadways, to increased congestion and delays; increased delays could result in drivers diverting to other, potentially less convenient, routes to access their destinations. ¶ Potential to cause the level of service at an intersection’s worst approach, to deteriorate from LOS D or better to LOS E or F with Caltrans signal warrants met; and/or potential to have significant adverse impacts at intersections that operate at LOS E or F under existing conditions...¶Potential to cause transit to experience increased travel time on streets where these improvements reduce capacity of roadways and result in significant increases in delay. ¶Potential to result in elimination of curb space currently dedicated to yellow commercial vehicle freight loading zones or active passenger loading/unloading zones.” (DEIR V.A.2-6) The EIR combines all of these impacts into “Significant Impact TR-A1.2” (DEIR V.A.2-6), but repeats that “the specific designs for the long-term improvements are unknown at this time.” (Id.) The DEIR then says, “The mitigation measures identified in Subsection V.A.5 would lessen some of the impacts that may result from implementation of the long-term improvements. However, there would be some environmental impacts that would remain significant and unavoidable.”

Thus, although it elsewhere identifies changes to specific streets as “long-term improvements,” the EIR states it does not know what their impacts will be, but concludes that they would have significant unavoidable impacts that cannot be mitigated. This circular self-exemption and deferral of analysis and mitigation are illegal under CEQA.

The EIR Fails to Identify the Direct, Indirect, and Cumulative Impacts of the Project’s Proposed “minor improvements”
The EIR excuses itself from describing, analyzing and mitigating impacts from physical changes to streets, sidewalks and traffic regulation by simply claiming that they are “minor improvements.” The so-called “minor improvements” include changes to streets, sidewalks, and traffic regulation that must be analyzed in the EIR, that may be preempted, and that may not comply with existing traffic regulations.

The EIR Fails to Accurately Disclose Air Quality Impacts from the Project’s Increased Traffic Congestion.
By using an inaccurate baseline, the EIR incorrectly concludes that the Project’s impacts on traffic congestion will not cause significant impacts on air quality. (DEIR V.B-19) Instead of using a standard based on existing conditions, the EIR states the baseline is an adjusted standard based on speculation that in the year 2025 “increasingly stringent control measures” will be imposed. (DEIR V.B-19) The agency may not use future speculation as a baseline for analyzing impacts under CEQA. Rather, it must use the actual conditions existing at the time of the Notice of Preparation of the EIR. (E.g., County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 955 [“An EIR must focus on impacts to the existing environment, not hypothetical situations.”]; Save Our Peninsula Committee v. Monterey County Board of Supervisors (2001) 87 Cal.App.4th 99, 119-120)

Further, the EIR only analyzes exposure to bicyclists and not the general air quality affecting the other 99% of the population that does not ride bicycles in the city and region as required. (DEIR, V.B-19.) (footnote #7) In fact, numerous intersections and spillover streets will be affected by the Project’s elimination of 56 traffic lanes and 1,914 parking spaces, and its forced-turning designs on major thoroughfares. Further, air quality affects everyone, not just bicyclists.

The EIR spends pages on irrelevant boilerplate conclusions that construction activities related to the Project will not cause air quality impacts. (DEIR, V.B-20-23) The EIR then concludes that, “Bicycle travel is an environmentally friendly means of transportation because there are no tailpipe emissions...” and repeats that, although the Project “would increase traffic congestion,” under its incorrect analysis based on a speculative baseline, it would not cause CO levels to exceed the ambient air quality standard, “and TAC emissions would be less than existing at all intersections.” (DEIR V.B-22)

The EIR then speculates with no supporting evidence that “Implementation of the Proposed Project would likely result in a net decrease in GHG emissions because the Proposed Project is expected to reduce emissions citywide by shifting a portion of motor vehicle trips to bicycle trips. However, the mode shift from cars to bicycles is not quantifiable, and therefore, the GHG analysis does not account for this potential decrease in GHG emissions.” (DEIR, V.B-23) This speculation about an unquantifiable future “mode shift” does not comply with CEQA.

The C&R dismisses criticism of the defective analysis by claiming that “Air quality impacts were discussed” in the Initial Study but were “scoped out of the Draft EIR.” However, an Initial Study is not a substitute for analysis in the EIR, and its conclusions are unsupported.

There is no legally adequate analysis of air quality impacts in the EIR or any other document provided by the city.

The EIR Fails to Identify, Analyze and Mitigate the Project’s Noise Impacts.
The EIR’s analysis of noise impact from the Project’s increased traffic congestion is also defective and legally inadequate.

The EIR concludes that increased congestion will not result in increased noise, and, without supporting evidence, claims that noise would be reduced on seven of the sixty segments in the “near-term improvements.” (DEIR, V.C-6) The EIR says, “This reduction would occur when new bicycle lanes are introduced to a street, and traffic flows are thereby relocated to portions of the street farther from the facing homes and other noise-sensitive receptors.” (DEIR, V.C-6 - 7)Thus, the EIR concludes that by moving the noise down the street, the Project will have no impacts. This is the type of evasion through unlawful piecemealing of environmental review that led to the injunction and peremptory writ on this Project.

Completely evading the Project’s congestion-inducing impacts, which will cause traffic to take much longer to move from one point to another, the EIR then concludes, “Because the Proposed Project would not alter existing traffic volumes, it would not lead to an increase in traffic-related noise.” (DEIR V.C-7)

These unsupported conclusions do not comply with CEQA.

The EIR Fails to Identify the Project’s Other Significant Impact from Increased Traffic Congestion, Degradation of Air Quality, Noise, and Degradation of Transit.

The EIR fails to address the Project’s impacts on land use, emergency services, sidewalks, and human impacts.

V. THE EIR’S CUMULATIVE IMPACTS ANALYSIS IS LEGALLY INADEQUATE.
CEQA requires analysis and mitigation of cumulative impacts when “the possible effects of a project are individually limited but cumulatively considerable...‘cumulatively considerable’ means that the incremental effects of an individual project are considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects.” (PRC §21083.Guideliines 15130(a).) Cumulative impacts are defined as “two or more individual effects which, when considered together, are considerable or which compound or increase other environmental impacts.” (Guidelines §15355) “Cumulative impacts can result from individually minor but collectively significant projects taking place over a period of time.” (Communities for a Better Environment v. California Resources Agency (2002), 103 Cal.App.4th 98, 117.) Cumulative impacts analysis is necessary because “the full environmental impact of a proposed project cannot be gauged in a vacuum...environmental damage often occurs incrementally.” (Id. at 118); Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 719-24; San Franciscans for Reasonable Growth v. City and County of San Francisco (1984) 151 Cal.App.3d 61, 74-77; Friends of the Eel River v. Sonoma County Water Agency (2003) 108 Cal.App.4th 859, 872 (abuse of discretion and prejudicial error to exclude cumulative impacts analysis).

The EIR contains no meaningful cumulative analyses. There is no identification of past projects affecting traffic, transit and parking, no identification or analysis of other current projects, and no identification and analysis of other probable future projects. Numerous other pending projects, such as the City’s Market-Octavia Plan Project, and its Eastern Neighborhoods Plan Project, only two examples of many, will alone have impacts on traffic, transit and parking, which must be identified in the EIR and analyzed in combination with the Project’s impacts. That analysis is totally absent from the EIR. The EIR also fails to analyze its own cumulative impacts and defeats such an analysis by improperly segmenting the Project’s “near-term improvements,” deferring analysis of its “long-term improvements,” omitting analysis of arbitrarily labeled “minor improvements,” as well as omitting analysis of the Plan and the legislation amending the General Plan, Planning Code, and Transportation Code.

The omission of a cumulative impacts analysis makes the EIR inadequate as a matter of law.

VI. THE EIR FAILS TO MITIGATE THE PROJECT’S SIGNIFICANT DIRECT, INDIRECT, AND CUMULATIVE IMPACTS.
Even though the EIR identifies some of the Project’s impacts on traffic, it declares them “unavoidable,” concluding that they cannot be mitigated or that no feasible mitigation measures can be found. In other instances, proposed mitigation measures are ineffective or will themselves have impacts requiring environmental review that has not been conducted.

The Findings adopted by the Planning Commission list 46 significant impacts from the “near-term improvements” that it claims are significant but “unavoidable.” (Planning Commission Motion 17912, Exhibit B) There is no feasibility finding or explanation for the conclusion that these impacts are not mitigable. There is no analysis of Project alternatives that would mitigate each of the “unavoidable” impacts. No Findings are made for the “long-term” improvements, the Bicycle Plan itself, the proposed legislation amending the General Plan, Planning Code, and Transportation Plan. The Findings falsely claim without supporting evidence that the “minor improvements” will have no impacts and thus require no mitigation. (Planning Commission Resolution 17913, Exhibit A, p. 67) The failure to mitigate each of the Project’s impacts violates CEQA.

“Under CEQA, the public agency bears the burden of affirmatively demonstrating that, notwithstanding a project’s impact on the environment, the agency’s approval of the proposed project followed meaningful consideration of the alternatives and mitigation measures.” (Mountain Lion, supra, 16 Cal.4th at 134.) An agency must make specific findings as to each significant effect based on substantial evidence in the administrative record, and cannot approve a project that will have significant environmental effects unless mitigation measures for each impact have been incorporated into the project or required by it that will avoid or substantially lessen that effect. (Federation of Hillside and Canyon Associations v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1197; PRC §§21081, 21081.5; Guidelines, §§15091(a), (b); 15093; and see Citizens for Quality Growth v. City of Mt. Shasta (1988) 198 Cal.App.3d 433, 444 [“Section 21081 and Guidelines section 15091 require an agency to make findings for each significant environmental effect.”].) “’Feasible’ means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.” (PRC §21061.1)

“[I]f any of the project’s significant environmental impacts will not be avoided or substantially lessened by mitigation measures, the agency must, before approving the project, make written findings that the project alternatives are infeasible.” (Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 373; PRC §21081(a)(3); Guidelines, §15091(a)(3).)

The separate CEQA Findings adopted by the Planning Commission (Resolution 17913, Exhibit A [“17913-A”]) make claims of mitigation that are unsupported, and unlawfully defer mitigation of “long-term improvements” (17913-A, p.21). The Findings admit that the Plan will have impacts, falsely claiming that they are analyzed in the DEIR. The Findings do not explain what the impacts are or how the inscrutable descriptions of mitigations would actually mitigate each impact. Instead, the Findings claim, for example, that “action 7.3 may result in significant impacts on the physical environment similar to those described in the draft EIR with respect to traffic, transit, and loading for the near-term and long-term improvements...including potential worsening of traffic levels-of-service, potential slowing of transit movement in the city, and potential reduction of truck loading spaces.” (17913-A, p.24) The Findings then state that “mitigation measure M-TR-A7.3, which includes all the mitigation measures that would be implemented in association with the near-term and long-term improvements of the Bicycle Plan,” shall be “implemented,” but that “the potentially-significant impacts listed above would be reduced but would remain at a significant and unavoidable level” anyway. (17913-A, p.24)

The EIR and Findings make unsupported conclusions that proposed mitigations will reduce the Project’s significant impacts. For example, the EIR and Findings claim that adjusting traffic signals to lengthen the green time on segments where traffic lanes are eliminated to make bicycle lanes will mitigate the impacts of funneling traffic into fewer lanes. No evidence is presented to support this conclusion, and there is no analysis of the significant impacts of lengthening the red time on the perpendicular parts of the segments that will be affected. (E.g., 17913-A, p. 16, ¶13.) CEQA requires that each mitigation of each significant impact and each finding must be supported by substantial evidence. (Woodward Park Homeowners Association, Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, 724.) CEQA also requires that impacts caused by proposed mitigations must also be identified and analyzed. (Save Our Peninsula Committee v. Monterey County Board of Supervisors (2001) 87 Cal.app.4th 99, 130)

The CEQA Findings further manipulate the segmentation in the EIR and its spurious six-minute threshold of significance to claim that impacts on transit would be reduced to a less-than-significant level. For example, the Findings claim that although Project 2-1 and Project 2-16 (construction of bicycle lanes on 2nd Street between King Street and Market Street and on Townsend Street between 8th Street and The Embarcadero) would result in significant delays , adding 14.4 minutes of delay to Muni bus line 10 on those segments. (17913-A, .12, ¶6) However, the Findings then claim that by the mitigations proposed on other segments the delay would be reduced to 4.8 minutes. Since the EIR has created an unsupported significance threshold of six minutes per segment, the Findings conclude that the 4.8-minute delay it claims would result from other mitigations would reduce the significant impacts to a less-than-significant level for these segments. (17913-A, 12, ¶6) The CEQA Findings then repeats this unsupported formulaic number-crunching to claim that other segments would also be mitigated.

First, a 4.8-minute delay in one segment of a Muni route is a significant impact. Second, no evidence is presented showing that by mitigating impacts on other segments all other impacts will also be mitigated. Further, “[A] mitigation measure cannot be used as a device to avoid disclosing project impacts.” (San Joaquin Raptor Rescue Center v. County of Merced 2007) 149 Cal.App.4th 645, 663-664)

CEQA requires that public agencies refrain from approving projects with significant environmental impacts when there are “feasible alternatives or mitigation measures which would substantially lessen the significant environmental effects of such projects.” (PRC §21002; and see Guidelines §§15002(a)(3); 15021(a)(2); and, e.g., Mountain Lion Foundation v. Fish & Game Commission (1997) 16 Cal. 4th 105, 134.) “‘Feasible’ means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.” (PRC §21061.1)

The EIR and Findings claim that there are no feasible mitigations for the numerous significant impacts identified by the EIR. However, the Findings present no evidence supporting the conclusions of the infeasibility of each mitigation. (Protect Our Water v. County of Merced, 110 Cal.App.4th at 373; Uphold Our Heritage v. Town of Woodside (2007) 147 Cal.App.4th 587, 599-601.) Findings on feasibility of mitigations and alternatives must be based on substantial evidence in the record. (PRC §21081.5) Such findings must set forth in writing that “Specific economic, legal, social, technological, or other considerations, including considerations for the provision of employment for highly trained workers, make infeasible the mitigation measures or alternatives identified in the environmental impact report.” (PRC §21081(a)(3).)

The EIR’s failure to propose and implement effective mitigations to the Project’s significant impacts violates CEQA.

VII. THE EIR DOES NOT PROPOSE AND ANALYZE A FULL RANGE OF ALTERNATIVES.

“Under CEQA, the public agency bears the burden of affirmatively demonstrating that, notwithstanding a project’s impact on the environment, the agency’s approval of the proposed project followed meaningful consideration of the alternatives and mitigation measures.” (Mountain Lion Foundation v. Fish & Game Commission (1997) 16 Cal.4th 105, 134)

Instead, the EIR states: “Unlike most EIRs, this EIR contains no separate chapter analyzing alternatives to the proposed project. This is because this EIR does not analyze a preferred project.” (DEIR, ES-74) However, the C&R document contradicts that statement and does contain “preferred project designs” that are “modifications to options analyzed in the Draft EIR, and are encompassed by the range of project alternatives represented by the original options analyzed.” (C&R-13) The “Supplemental Revision Memo to the Planning Commission,” June 25, 2009, also sets forth a “preferred project” eliminating the purported “options” described as “near-term improvements.”

“[I]f any of the project’s significant environmental impacts will not be avoided or substantially lessened by mitigation measures, the agency must, before approving the project, make written findings that the project alternatives are infeasible.” (Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 373; PRC §21081(a)(3); Guidelines, §15091(a)(3).) The agency’s findings must also describe the specific reasons for rejecting the alternatives identified in the EIR. (Ibid.) “And the findings must be supported by substantial evidence in the record.” (Ibid., and see PRC §21081.5; Guidelines §15091(b).)

The EIR fails to propose a full range of alternatives to mitigate or eliminate each significant impact, and contains no coherent alternatives analysis in violation of CEQA. (Guidelines §15126.; and see, e.g., Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 371) In fact, the EIR presents no alternatives to the “Program-Level” proposals except fully accepting either “Alternative A,” which “represents the adoption of the full set of program-level actions, namely all minor improvement projects and all long-term improvement projects, or Alternative B--Sharrows) which would be limited to the installation of sharrows on street segments identified for long-term improvement, instead of other bicycle facilities.” (DEIR, VII-12)

The “Project-Level” alternatives analysis is incomprehensible, with significant impacts identified regardless of which “near-term” improvement is chosen. (DEIR, VII-12-VII-15) Thus, the proposed single “alternative” to the entire Project does not accomplish the purpose required by CEQA, which is to eliminate or mitigate the Project’s significant impacts. “A major function of an EIR is to ensure that all reasonable alternatives to proposed projects are thoroughly assessed by the responsible official.” (San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.app.4th 713, 735)

The EIR contains no analysis of off-site alternatives, which might, for example, propose bicycle lanes on streets where they would have less significant impacts. That omission also violates CEQA. (Guidelines §15126.6; Save Round Valley Alliance v. County of Inyo (2007) 157 Cal.App.4th 1437, 1456-1457; PRC §21002.1(a) [EIR “shall describe a range of reasonable be alternatives to the project, or to the location of the project, which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project, and evaluate the comparative merits of the alternatives.”(emphasis added)].)

Rote, unsupported conclusions about the Project’s goals in the Findings similarly do not satisfy the requirements of CEQA to consider alternatives in the EIR that would mitigate each of the Project’s impacts. Furthermore, “A potential alternative should not be excluded from consideration merely because it would impede to some degree the attainment of the project objectives.” (Preservation Action Council v. City of San Jose (2006) 141 Cal.App.4th 1336, 1354)

The alternative analysis in the EIR is legally inadequate and unsupported by substantial evidence, and the EIR makes no serious attempt to propose or analyze alternatives that would substantially lessen any of the significant effects of the Project.

The Planning Commission’s CEQA Findings reiterate the alternatives description in the EIR, along with its conclusions that the “Project Level Alternative A” would have “17 significant and unavoidable traffic impacts at 10 different intersections in Cluster 2; three significant and unavoidable traffic impacts at as many different intersections in Cluster 3; and 10 significant and unavoidable traffic impacts at four different intersections in Cluster 5. There also would be significant and unavoidable transit impact to four Muni and one SamTrans bus lines, all in Cluster 2 [and] four significant and unavoidable loading impacts in Cluster 2, and four significant and unavoidable loading impacts in Cluster 5,” and that “Project-Level Alternatives B” would have even more “significant and unavoidable traffic impacts.” (17413-A, p.74) If “alternatives” do not lessen or eliminate impacts, they are not “alternatives” at all. Therefore the Findings, like the EIR, are legally inadequate because reasonable alternatives are not proposed or analyzed. Further the alternatives analysis had to be in the EIR to allow the public the opportunity to make informed comment and meaningfully participate in environmental review of the Project.

The Findings adopted by the Planning Commission on June 25, 2009, reject all “Project-Level” alternatives and “Program-Level Alternative B,” (the “environmentally superior” alternative), and announce that MTA has come up with yet another “Preferred Project” (apparently more “preferred” than the ones in the June 11, 2009, C&R and the June 25, 2009, “Supplemental Revision Memo to the Planning Commission.” (CEQA Findings, 17413-A, p.75) However, the “Preferred Project” suffers from the same legal defects as the other alternatives---it does not mitigate the significant impacts of the Project.

Furthermore, the last-minute, new “preferred” Project must be recirculated because it substantially changes the Project description, the significant impacts of the Project and their severity, and because the public has been denied the opportunity to comment on and meaningfully participate in the environmental review of the “preferred Project.”

The Findings also reject the No Project alternative as applied to the whole Project but do not analyze a No Project alternative to each of the Project’s impacts individually. Thus, the EIR improperly segments the analysis of impacts but presents Project alternatives as an all-or-nothing ultimatum.

The reasons for rejecting the No Project alternative are legally inadequate, irrelevant and speculative, claiming that a greater number of people “would make bicycle trips if there were more bicycle lanes and sharrows on the roadways” and that “the City would not benefit from any potential air quality improvements that could result from an increase in bicycle mode share.” (17413-A, p.72) These conclusions are inadequate as a matter of law and are unsupported by substantial evidence.

VIII. THE STATEMENT OF OVERRIDING CONSIDERATIONS IS FALSE, LEGALLY INADEQUATE AND IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.
CEQA requires that no agency shall approve or carry out a project for which an EIR identified one or more significant effects unless the agency makes one or more of the following findings with respect to each significant effect: (1) Changes or alterations have been required in, or incorporated into, the project which mitigate or avoid the significant effect; and (2) Those changes or alterations are within the responsibility and jurisdiction of another public agency and have been, or can and should be, adopted by that other agency; and “(3) Specific economic, legal, social, technological, or other considerations, including considerations for the provision of employment opportunities for highly trained workers, make infeasible the mitigation measures or alternatives identified in the environmental impact report.” (PRC §21081(a).) After those findings are made, CEQA also requires, “With respect to significant effects which were subject to a finding under paragraph (3) of subdivision(a), the public agency finds that specific overriding economic legal, social, technological, or other benefits of the project outweigh the significant effects on the environment.” (PRC §21081(b).)

If an agency proposes to adopt a project in spite of significant, unavoidable environmental impacts that cannot be mitigated, it must first adopt a statement of overriding considerations. (PRC §21081(b); Guidelines §15093) “If the specific economic, legal, social, technological, or other benefits of a proposed project outweigh the unavoidable adverse environmental effects, the adverse environmental effects may be considered ‘acceptable.’” (Guidelines, §15093(a).)

“When the lead agency approves a project which will result in the occurrence of significant effects which are identified in the final EIR but are not avoided or substantially lessened, the agency shall state in writing the specific reasons to support its action based on the final EIR and/or other information in the record. The statement of overriding considerations shall be supported by substantial evidence in the record.” (Guidelines §15093(b).)

On June 25, 2009, the Planning Commission adopted CEQA Findings containing a statement of overriding considerations (“the statement”). (17413-A, p. 121) However, because the EIR does not contain a legally adequate alternatives analysis, the agency may not lawfully adopt a statement of overriding considerations. (Woodward Park Homeowners Association v. City of Fresno (2007) 150 Cal.App.4th 683, 718 [Where the alternatives analysis is incorrect or misleading, the statement of overriding considerations is skewed and does not properly weigh the trade-off of impacts versus benefits.] Further, the claim that the Project’s serious impacts are “unavoidable” is unsupported fiction. The impacts could be avoided by mitigation, including modifying the Project, or by offering a full range of alternatives for each impact, including off-site alternatives and the No-Project alternative. Instead, findings that the impacts are unavoidable were false, because the two alternatives, including No Project, were presented as an all-or-nothing ultimatum.

Even if the statement of overriding considerations were preceded by a legally adequate EIR, the statement itself is false, irrelevant, legally inadequate and unsupported by substantial evidence.

The goals of the Project are irrelevant to the agency’s burden to prove with substantial evidence that specific economic, legal, social, technological, or other benefits of the Project outweigh its purportedly unavoidable adverse environmental effects. Statements purporting consistency with the General Plan or other policies are likewise irrelevant and do not meet CEQA’s requirement of substantial evidence for the tradeoff of giving over public streets and inflicting significant impacts on the vast majority of residents and visitors to benefit a tiny special interest group. The statement must specifically address each purportedly unavoidable impact and set forth with substantial evidence already in the EIR or in the record the reasons for its conclusions.

Statements of policy do not insulate a Project from CEQA’s “central demand that environmental decisions be made after the public and decision makers have been informed of their consequences and the reasons for and against them.” (Woodward Park Homeowners Association, inc. v. City of Fresno, supra, 150 Cal.App.4th at 718) Therefore, discussions of goals, the General Plan, or other policy programs are meaningless in the statement.

“The statement’s purposes are undermined if...it misleads the reader about the relative magnitude of the impacts and benefits the agency has considered.” (Woodward Park Homeowners Association, inc. v. City of Fresno, supra, 150 Cal.App.4th at 718) Here, the statement fails to disclose that the magnitude of the impacts affect hundreds of thousands of transit riders, motorists, and pedestrians, as well as the air quality, land use, noise, and emergency services of the entire population of the area, while the purported benefits accrue to one percent of the population that rides bicycles for any purpose. (SFCTA: Countywide Transportation Plan, July, 2004, p.39.) The statement’s failure to disclose this information and to support its conclusions with substantial evidence in the record and the EIR make it legally inadequate. The statement only discusses advantages to bicyclists in a closed universe of bicycling, distorting the magnitude of the Project’s impacts on the environment.

The statement consists largely of proselytizing for the Project and unsupported presumptions and speculation. Other statements are simply false or are unsupported conclusions, such as:

“By investing in and implementing the bicycle facility improvements, educational efforts, and innovative policies and programs recommended in the Project, the City will make bicycling a more viable mobility option. Finally, this Project supports larger City efforts to revitalize and transform its streets into more inviting public spaces that prioritize non-motorized travel.” (17413-A, p. 124)

Making bicycling a more “viable mobility option” for the one percent of travelers who choose bicycling does not outweigh the severe impacts of the Project on the 99% of the population who have chosen other “mobility option[s],” including public transit, cars, and walking. Supporting “more inviting public spaces that prioritize non-motorized travel” is a policy statement that is irrelevant. The pertinent burden on the agency was to address with substantial evidence why the Project’s severe impacts on transit, traffic, parking, public safety, and air quality for the vast majority of people are outweighed by its benefits to a special interest group constituting less than one percent of the traveling population.

“Bicycling not only has health benefits for the bicyclist, but also it contributes to an improved quality of life for society as a whole.” (17413-A, p. 124) This statement is irrelevant and unsupported. The statement must state with substantial evidence why each specific significant adverse impact of the Project should be disregarded.

“Bicycling can significantly reduce gridlock on, and facilitate more efficient use of, City streets. The vast majority of trips made by automobile are within a few miles of their origins. These short trips could be accomplished by bicycle, provided there is adequate and safe infrastructure. By promoting the policies and implementing the projects in this Project, the City can dramatically shift the number of people driving to more sustainable modes of travel. Augmented bicycle infrastructure and enhanced policies the promote bicycling...can also improve connections to other public transportation modes, further reducing the number of trips made by private automobile.”(17413-A, p. 124)

This statement is irrelevant, speculative, and unsupported by evidence. It incorrectly promulgates the fantasy that people will abandon driving and transit for bicycling if traffic lanes and parking spaces are eliminated. No evidence supports that fantasy or the claim that bicycles present a reality-based transportation option for most people. The statement must specifically address each impact caused by the Project and be supported by substantial evidence.

“Health and safety: Bicycling not only provides an efficient mode of travel, but also a great way for people to exercise. As rates of obesity and physical inactivity continue to rise in America, the importance of bicycling cannot be understated. Even minimal amounts of bicycling have been shown to produce measurable physical and mental health benefits.” (17413-A, pp. 124-125)

These unsupported statements are irrelevant to the significant impacts on transit, traffic, and parking caused by the Project. The exercising benefits to the one percent of the population who use bicycles do not outweigh the Project’s significant impacts on the 99% of the population who do not use bicycles to travel. The statement must address the specific impacts and their magnitude, and must be supported by substantial evidence.

“Implementation of the near-term projects, enforcement policies, and education efforts in this Project will also result in increased visibility of bicyclists, a reduction in moving violations, and increased awareness of driver and bicyclists responsibilities. The end result will be a reduction in the number of bicycle collisions on City streets.” (17413-A, p. 125)

This claim is speculative and unsupported by evidence, since bicyclists are already visible, receive few “moving violations” and, according to the Plan itself, the number of bicycle collisions has declined without the Project. Generalized speculation does not meet CEQA’s requirements for a statement of overriding considerations.

“Bicycles are the most environmentally sustainable vehicle available. They produce none of the greenhouse gases associated with global warming, nor any of the pollutants linked to asthma or other chronic health problems. Furthermore, bicycles are quiet and do not contribute to noise pollution. Implementation of this Project will undoubtedly facilitate the City’s push to become a more sustainable City that preserves and protects its natural resources for future generations.” (17413-A, p. 125)

This unsupported claim is irrelevant to the impacts of the Project, which the EIR concedes will cause congestion and slowing of transit, with serious impacts on traffic, transit, parking and air quality that will result in worsened air pollution and noise. Again, the statement must compare the severity and magnitude of each of the Project’s impacts to its benefits, and its conclusions must be supported by substantial evidence.

“The annual costs of congestion, pollution, traffic accidents, as well as constructing new, and maintaining existing, automobile infrastructure are significant. Augmenting and improving bicycling infrastructure in the City can significantly reduce the economic costs associated with driving by shafting drivers to more cost-effective transportation options.” (17413-A, p. 125)

This statement repeats the unsupported speculation that drivers will shift to bicycling if “bicycling infrastructure” is improved. The statement is misleading in violation of CEQA. Since drivers fund the street infrastructure, and bicyclists fund nothing, the “economic costs” would logically increase, not decrease, if the number of drivers were reduced.

“Furthermore, increasing bicycling infrastructure can improve access to many of the City’s commercial corridors. Studies have shown that in a dense urban environment such as the city many shoppers do not access commercial centers by automobile, but rather through transit or other non-motorized modes. This Project would stimulate significant economic growth by facilitating access to commercial zones and encouraging the development of these zones not just as shopping ‘center,’ but rather as vibrant public spaces.” (17413-A, p. 125)

Nothing in the EIR or elsewhere supports the claim that the Project would stimulate economic growth. Making travel and transit more difficult and congested and eliminating parking are likely to have the opposite effect. In any event, this speculation does not meet the agency’s burden to prove with substantial evidence that specific economic, legal, social, technological, or other benefits of the project outweigh its adverse effects on transit, traffic, parking, land use, and public space.

“Equity: The annual costs of driving are in thousands of dollars, leaving many segments of the population unable to afford the luxury of owning an automobile. Conversely, bicycles are one of the cheapest modes of transportation available. For many low-income individuals, bicycles constitute their predominant mode of travel. The implementation of the projects and policies in this Project will significantly expand bicycle infrastructure in the City, thereby providing enhanced transportation access to underserved segments of the population.” (17413-A, p. 125)

The claims are unsupported that “many segments of the population" are unable to afford “the luxury of owning an automobile.” In fact, most people in San Francisco own cars and the SFCTA projects that figure will rise. (SFCTA: Countywide Transportation Plan, July, 2004) There is no evidence that “many low-income” individuals use bicycles as their “predominant mode of travel” or that the Project will provide “enhanced transportation access to underserved segments of the population.” In fact, the Project will cause significant impacts adversely affecting the large demographic of working people who must commute from outlying areas to jobs in San Francisco because they cannot afford to live here. Access to transportation for all segments of the population will be adversely affected by the Project’s impacts on transit, traffic, and parking. Therefore, this statement is misleading, legally inadequate, and is unsupported by substantial evidence. Further, it does not address the specific impacts of the Project.

The statement of overriding considerations then mechanically goes through some of the Project’s “near-term improvement” significant impacts that it claims are “unavoidable.” (17413-A, pp. 125-132) Similar unsupported cheerleading and proselytizing are interspersed with unsupported statements that dismiss the seriousness and magnitude of the impacts and “mislead[s] the reader about the relative magnitude of the impacts and benefits the agency has considered.” (Woodward Park Homeowners Association, inc. v. City of Fresno, supra, 150 Cal.App.4th at 718) Even assuming that the EIR does not reach false, misleading conclusions by unlawfully piecemealing the “near-term improvements” into segments of streets, the statement is legally inadequate because it does not weigh the magnitude of the impacts against the purported benefits of the Project. Instead, the statement only considers the benefits to bicyclists.

For example, consider the impacts on transit, traffic, parking, and pedestrians from “Project 2-1, 2nd Street Bicycle Lanes, King Street to Market Street.” The statement claims without support that “recent bicycle counts have shown an increase in the number of bicyclists using this corridor,” but that “Unfortunately, the narrow width of the street and high traffic volumes make 2nd Street a particularly challenging bicycling environment.” (17413-A, p. 126) The EIR states that bicycle ridership is “low” on this major thoroughfare, meaning fewer than 100 bicyclists in a peak hour, but that it carries high volumes of transit and traffic. (DEIR V.A.3-47)

The Project claims that 99% of the population must suffer delays in transit and traffic and the impacts of eliminating thousands of parking spaces because the “bicycling environment” is “challenging” in several other parts of the statement (footnote #8). However, this speaks to both the Project’s misleading claim that the “bicycling environment” is separate and superior to the “environment,” and the presumption that “challenging” conditions for bicyclists on heavily-travelled thoroughfares must be made less “challenging” regardless of the significant adverse impacts on the vast majority of travelers.

The environment protected by CEQA is the whole environment, not just the “bicycling environment.” The environment belongs to everyone, not just a special interest group. The statement must speak to the Project’s impacts on this larger environment and all the people in it.

The statement similarly claims that the Project will “fill gaps” in the “bicycle route network,” provide “links” from one point to another, “facilitate connections,” or “create continuous bicycle infrastructure" (footnote #9). However, this does not weigh those purported benefits to a special interest group against the Project’s impacts on hundreds of thousands of transit riders and other travelers.

Thus, the statement of overriding considerations speaks falsely with the insular presumption that if the Project benefits a tiny special interest group, its serious impacts need not be considered. The same false assumption flaws the entire statement.

The statement repeats its cheerleading and speculative verbiage as “overriding considerations” to the purportedly “unavoidable” significant impacts of the “long-term improvements” that it claims cannot be identified in the EIR. (17413-A, pp. 132-134) For example, the statement claims without evidentiary support that “The 2009 Bicycle Plan and long-term improvements are necessary components to ensuring that San Francisco becomes a world-class bicycling City...As bicycling continues to emerge in San Francisco as a preferred and safe alternative transportation option, it will be essential for the City to continue to expand and modify the Bicycle Route Network and respond to changes in demand for bicycling infrastructure.” The statement of overriding considerations is thus improperly used to exempt the Project from further environmental review of the “long-term improvements.” Under CEQA, the statement must specifically address the overriding considerations for each “unavoidable” significant impact. The statement claims without specificity that “Many of the long-term improvements have not been finalized and will be undergoing significant levels of additional study. As these projects undergo further design and environmental study it is expected that some of the identified impacts will be addressed through design changes or reduced to a less than significant level via mitigation.” (17413-A, p.134) However, CEQA requires that the EIR describe the Project, identify the impacts of “long-term improvements” and proposed mitigations or alternatives that will lessen their known impacts now, not at some unspecified future date.

The statement continues with an improper done-deal assumption: “Having considered these specific Project benefits, including the overall benefits of bicycling discussed above, the Board finds that the Project’s benefits outweigh the unavoidable adverse environmental effects, and that the adverse environmental effects are therefore acceptable.” For the foregoing reasons, and because it presumes the Board’s findings, which must be made independently of the Planning Commission’s findings, this statement violates CEQA.

IX. THE BOARD MUST INDEPENDENTLY CONSIDER THE MATTERS SET FORTH IN THIS APPEAL AND MAKE ITS OWN FINDINGS BEFORE IT MAY CONSIDER ADOPTING LEGISLATION TO ADOPT OR IMPLEMENT THE PROJECT.

As this Appellant has previously written, the Board must independently consider the matters set forth in this Appeal and make its own written Findings before it may adopt legislation implementing the Project.

X. THE PROJECT IS PREEMPTED.
A number of the Project’s proposed traffic regulations are preempted because they are already in, or conflict with, provisions of the California Vehicle Code.

XI. CITY MAY NOT AMEND ITS GENERAL PLAN, BECAUSE ITS GENERAL PLAN IS SUBSTANTIALLY OUT OF COMPLIANCE WITH THE REQUIREMENTS OF THE GOVERNMENT CODE.
XII. EVEN IF CITY’S GENERAL PLAN WERE VALID, THE PROJECT IS INCONSISTENT WITH THE GENERAL PLAN AND CREATED INTERNAL CONFLICT IN THE GENERAL PLAN, INCLUDING ITS INCONSISTENCY WITH TRANSIT FIRST AND THE PRIORITY POLIICIES OF PROPOSITION M.
CONCLUSION
For the foregoing and other reasons, certification of the EIR by the Board would be an abuse of discretion and failure to proceed in a manner required by law under CEQA. Re-adoption of agency findings and the agency’s statement(s) of overriding considerations would also be an abuse of discretion since they are legally inadequate and unsupported by substantial evidence.

The Board should therefore grant this Appeal and should not adopt the Project or any implementing legislation until and unless the EIR, findings, and the Project itself fully comply with CEQA and other laws. The EIR should be returned for revision and be recirculated for public review and comment to comply with CEQA, and other remedies as noted in our Notice of Appeal and as may be raised in these and further proceedings.

DATED: August 4, 2009 ______________________________
Mary Miles
Attorney for Appellant, Coalition for Adequate Review


(1) MEA claims that it posted the DEIR on its web site on November 26, 2008, but there was no posting during normal business hours, and web site posting is not proper notice, because it requires people to have access to computers and the internet to receive notice. Web posting is particularly inadequate when members of the public, including this Appellant, have requested notice and copies of relevant documents.

(2) Throughout the EIR refers to “improvements” to an “existing bicycle route network.” The EIR explains that, “the existing San Francisco bicycle route network includes bicycle routes in the public right-of-way” and that “the existing bicycle route network and potential improvements are described in the Network Improvement Document, which was prepared in April 2005 and is subject to further refinement based upon modifications that the MTA Board of Directors has authorized and the project-level analysis provided in this environmental review process.” (DEIR, Appendix A, p.5) However, the “bicycle route network” and the 2005 Network document have never received environmental review, and in fact are the subject of the Court’s Order of November 7, 2006, Judgment of June 25, 2007, and Peremptory Writ of Mandate of July 25, 2007, as well as the injunction against the City. Thus, contrary to misleading references throughout the EIR, the “bicycle route network” under review in the EIR is not “existing,” but is yet to be validated and is the subject of the EIR itself. The term “improvements” is also disingenuous, since the Project’s impacts would degrade travel for the 99% of residents and visitors in San Francisco who do not use bicycles.

(3) The San Francisco Bicycle Coalition (“SFBC”) is a private lobbying and advocacy corporation that is credited on the Project’s Bicycle Plan document (inside cover): “Public outreach and community planning for the San Francisco Bicycle Plan was funded by a Caltrans Community Based Planning Grant administered by the San Francisco County Transportation Authority to the San Francisco Bicycle Coalition.” A copy of that grant was not provided pursuant to Appellant’s PRA request.

The SFBC also endorses the monthly Critical Mass event that blocks city traffic on the last Friday of the month during the evening commute hour. The City subsidizes the SFBC through publicly funded contracts and grants that include paying its rent, salaries, and other expenses. The SFBC received at least $276,000 in public funds from the City for “outreach” on the 2005 Bicycle Plan (See, Record of Proceedings at 9 AR 1973, 2029-30, 2089, 10 AR2147-55, 2179, 2284, Coalition for Adequate Review v. City and County of San Francisco, SF Super.Ct. Case No. 505509), and has received at least $646,430 from the City to conduct self-promotional activities including the above-noted “outreach,” the SFBC’s “Bike to Work Day” event, and other SFBC events between 2005 and the present. (See, e.g., Grant Agreement dated 6/23/06 ($44,000 to post blurbs for recycling in SFBC newsletters); Contract No. CS-158, dated 4/21/09($98,930 for “Bicycle Safety Education Classes”); Contract #CS-157, dated 3/30/09 ($99,000 for promoting SFBC’s “Bike to Work Day” event); Contract #401-07/08, dated 2/4/08 ($79,000 for promoting and conducting “Street Skills” classes); Contract #3083-06/07, dated 2/1/07 ($49,500 for promoting SFBC’s “Bike to Work Day” event). The SFBC has also continually attended meetings with City staff and officials that were not public or publicly noticed.

(4) The EIR refers to a Transportation Impact Study [“TIS”], but the TIS is not contained in the EIR. The TIS contains only diagrams showing hourly traffic volumes at various intersections within segments, but does not contain cumulative totals or any statement of methodology that correlates those volumes with the conclusory descriptions of traffic volumes in the EIR. (See, e.g., Environmental Defense Fund, Inc. v. Coastside County Water District (1972) 27 Cal.App.3d 695, 706 [“[W]hatever is required to be considered in an EIR must be in that formal report; what any official might have known from other writings or oral presentations cannot supply what is lacking in the report.”]; and County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 955 [The public and decisionmakers should not have to cobble together information included in and appended to the EIR, and “An EIR requires more than raw data; it requires also an analysis that will provide decision makers with sufficient information to make intelligent decisions.”].)

(5) Project 2-1: 2nd Street bicycle Lanes, King Street to Market Street (The EIR concludes that Muni Line #10 (10 buses per hour) would experience an added delay of 14.1 minutes, but that other bus lines on the same corridor would not surpass the 6-minute threshold. (DEIR V.A.3-225, 3-226, 3-229, 3-340, 3-341)

Project 2-4: (“preferred project design” C&R-301): 17th Street Bicycle Lanes, Corbett Avenue to Kansas Street, including connections to the 16th Street BART Station via Hoffman Street or Valencia Street, and 17th Street to Division Street via Potrero Avenue (V.A.3-627; C&R-301) (Muni line #9 (16 buses per hour each way) and SamTrans Line #292 (16 buses per hour each way) would experience “significant delays.”)

Project 2-16: Townsend Street Bicycle Lanes, 8th Street to The Embarcadero (V.A.3-628; C&R-305) (Muni lines #30 (6 westbound and 22 eastbound buses per hour AM and 6 westbound and 30 eastbound PM) (DEIR, V.A.3-326; C&R 365-366)

Project 3-2: Masonic Avenue Bicycle Lanes, Fell Street to Geary Boulevard (V.A.3-628; C&R-366) will delay Muni line #43.

Project 5-4: Bayshore Boulevard Bicycle Lanes, Cesar Chavez Street to Silver Avenue (V.A.3-630 [“PSI-FMA” “feasible mitigation available”].)

Project 5-6: Cesar Chavez Street/26th Street Bicycle Lanes, Sanchez Street to US 101 (V.A.3.630; C&R-369)

(6) This Appellant requested supporting data for these statements but received only the letter from Mr. Wycko, in which he admits that he, himself, is the anonymous transportation planner whose personal “experience” formed the basis for this statement, with some attachments. However, Mr. Wycko produced no supporting evidence for his personal opinion, instead referring to ancient traffic (not parking) counts and personal e-mails and memos about the ball park. Mr. Wycko claimed that after development of high-rise office space in downtown San Francisco, that parking demand was reduced. (See Letter, Bill Wycko to Mary Miles, dated March 6, 2009.) Mr. Wycko also claims that after development of the AT&T ball park that fewer people travel by car to ball games. The EIR’s claims were not supported by the documents Mr. Wycko referred to, however, and no other documents were produced. The referenced documents are irrelevant, outdated, and do not support Mr. Wycko’s personal conclusions on parking in the EIR.

(7) The EIR claims that “bicyclists using the bicycle routes installed under the Plan would be exposed to these higher MSAT exposures only over short segments of their routes that pass through the few intersections with increased traffic congestion resulting from Plan implementation.” (DEIR, V.B-19)

(8) See, e.g., 17413-A, pp. 126 (Project 2-1[“challenging”); 128 (Project 2-7 [“challenging”); p. 130(Project 5-4 [“challenging”); p. 131 (Project 5-6 [“inhospitable”]), 132 (Project 6-5 [“challenging”).

(9) See, e.g., 17413-A, pp. 125 (Project 1-3), 126 (Projects 2-1, 2-2), 127, (Projects 2-3, 2-4), 128 (Projects 2-7, 2-9), 129 (Projects 2-11, 2-16, 3-2), 130 (Projects 5-4, 5-5), 131 (Projects 5-6, 5-13), and 132 (Project 6-5)