Memo supporting the appeal of the Oak/Fell bike lane project

Mark Brennan

Howard Chabner

Ted Loewenberg

DATE: December 3, 2012

MEMORANDUM IN SUPPORT OF APPEAL TO THE SAN FRANCISCO BOARD OF SUPERVISORS OF MTA BOARD APPROVAL AND SF PLANNING DEPARTMENT CEQA EXEMPTION DETERMINATION OF OAK AND FELL BIKE LANE PROJECT

INTRODUCTION

This is a Memorandum in Support of the Appeal by appellants Mark Brennan, Howard Chabner and Ted Loewenberg ("Appellants") of the October 16, 2012 actions of the San Francisco Municipal Transportation Agency ("MTA") Board of Directors approving the Oak and Fell Pedestrian and Bicycle Safety Improvements project (the "Project") and of the San Francisco Planning Department‟s October 4, 2012 Categorical Exemption of the Project from environmental review.

Appellants filed a Notice of Appeal with the Clerk of the Board of Supervisors on November 2, 2012, and included copies of the MTA Board‟s October 16, 2012 Resolution #12-129 (the "MTA Resolution") and the Planning Department‟s October 4, 2012 Certificate of Determination regarding Categorical Exemption (Exemption from Environmental Review for the MTA Fell & Oak Streets Bikeways Project, Case No. E011.0836E) (the "Certificate").

PROJECT DESCRIPTION

The Project is located in a densely populated residential, commercial and tourist area in the heart of San Francisco. The Project would make major changes on Oak, Fell, Baker and Scott Streets. Fell, which is one-way Westbound, and Oak, one-way Eastbound, together comprise one of San Francisco‟s most vital and heavily trafficked East-West thoroughfares, carrying a combined more than 60,000 motor vehicles per day. (Since many vehicles carry more than one person, the number of drivers and passengers affected by the Project will be many more than 60,000 per day.) They are the major thoroughfares leading to (Oak) and from (Fell) the Octavia Boulevard entrance and exit for Highway 101. This is also a major pedestrian area with a large amount of pedestrians traveling up and down Oak and Fell Streets towards Divisadero and downtown, or vice versa to the Panhandle and the Haight. The Project area also includes Divisadero Street, a major North-South thoroughfare and commercial street that includes many stores, restaurants, cafés, a hotel and other small businesses.

The Project would:

Create a bike lane and 5-foot wide buffer strip on the South side of the three blocks of Oak from Scott to Baker, where no bike lane or buffer strip currently exists.

Move the bike lane that currently exists on the South side of the three blocks of Fell from Scott to Baker to the curb lane, where no bike lane currently exists, and add a 5-foot wide buffer strip where no buffer strip currently exists.

In the buffer strips construct concrete raised, planted traffic islands, as close as approximately 10 feet from residential and commercial driveways, and next to abundant moving traffic.

Remove all existing parking lanes on the South side of three blocks of Oak and the South side of three blocks of Fell (in each case from Scott to Baker), resulting in the loss of 88 street parking spaces on Oak and Fell, in addition to parallel parking in front of driveways on those streets which are currently being used as parking spaces by residents of the buildings.

Remove over 100 feet (five metered parking spaces) of yellow zone (commercial loading and unloading) parking on Oak.

Remove certain white zone (passenger loading and unloading) parking spaces on Oak and Fell.

Narrow the parking lane on the North side of Oak.

Construct 12 concrete bulbouts on various corners of Oak and Fell, many of which are double bulbouts.

Result in the loss of 13 street parking spaces on Oak and Fell to make room for the bulbouts.

Reduce the number of travel lanes on Oak during morning rush hour (7 AM to 9 AM) from four to three, a 25% reduction.

Reduce the number of travel lanes on Baker between Oak and Fell from two lanes in each direction to one lane in each direction plus one lane with exclusive left turn pockets.

Convert parallel street parking spaces on one side of certain blocks of Baker and Scott to back-in angled parking (Baker between Fell and Oak) or perpendicular parking.

Change or add various traffic signals at Oak/Baker and Oak/Broderick, and add turn pockets at several locations on Oak.

Establish a left turn only lane on Eastbound Oak at Baker.

(Except for the introductory paragraph, the above descriptions are from the Certificate.)

PROJECT IMPACTS

As described in numerous public testimonies, including comments at meetings and hearings, and in correspondence, the Project will have the following impacts:

Threaten the safety of bicyclists and motorists. Encouraging cycling on high-speed, heavy volume streets such as Oak and Fell is unsafe. Cars and bikes often don‟t remain in their lanes. Many cyclists refuse to use lights at night and are difficult for motorists and pedestrians to see. Cyclists will also be at risk from motor vehicles backing out with poor visibility from driveways and garages on Oak and Fell, plus other motorists using the bike lane to load and unload passengers and packages. All of this will be made more difficult by the raised planters as close as a bit more than 10 feet away from driveways, which will further reduce visibility, making it more difficult to pull out of driveways, and in many cases will force residents to block the bicycle lane while waiting to back out into heavy traffic. Moreover, unlike on low volume streets such as Page and Hayes, cars pulling out of driveways on Oak and Fell are only able to do so when motor vehicle traffic is stopped by a red light. Given the fact that many cyclists do not obey traffic signals, vehicles could be pulling out of driveways when they do not expect any traffic, only to tragically hit (or be hit by) an unexpected cyclist. Currently, Page and Hayes, located just one block from Oak and Fell, respectively, are designated as bike transit streets and are used by many bicyclists each day.

Jeopardize pedestrian safety by concentrating more cyclists in busy pedestrian intersections. Many cyclists go through red lights, don't use lights at night, text or use cell phones while cycling, and disobey other traffic safety laws, yet San Francisco is notoriously lax in enforcing traffic safety laws against cyclists.

Increase traffic, congestion and idling of vehicles because of the reduction in travel lanes on Oak during morning rush hour, the reduction in travel lanes on Baker between Fell and Oak, the left turn only lane on Eastbound Oak at Baker, the numerous bulbouts that make it more difficult to turn, the loss of many street parking spaces, the loss of yellow zone and white zone parking, the conversion of parallel parking into back-in angled parking and perpendicular parking (which takes longer and is more complex than parallel parking), and the changes to traffic signals.

Increase pollution, including greenhouse gases and toxic air contaminants (TAC) emitted by motor vehicles, because of the increased traffic, congestion and idling of vehicles. Fell and Oak are predominately residential in the Project area, and residences are considered sensitive receptors for the purposes of a TAC analysis. But to appellants‟ knowledge, MTA has not done a TAC analysis of the Project (if an analysis was done, it has not been disseminated to the public).

Jeopardize public safety by slowing down emergency vehicle response time. Besides the impact of overall congestion described above in the area, emergency vehicle access, especially for firefighting vehicles, is likely to be impeded by the numerous bulbouts, including double bulbouts. The Project was going to include a bulbout on Broderick and Oak near Falletti‟s Market, but at the MTA Board hearing on October 16, 2012, it was removed from the Project because MTA staff and the Board acknowledged that the bulbout would make it much more difficult, if not impossible, for Falletti‟s suppliers to drive their trucks around that corner. Suppliers would have to drive around the block and approach the building from the other direction in order to avoid the bulbout. If a bulbout would be an obstacle for delivery trucks, it would also be an obstacle for large fire trucks and engines. This would be especially problematic considering the Project would include 12 bulbouts clustered in nearby intersections in a dense, heavily trafficked area. Moreover the Project would make the entire situation more complex and congested, reducing the space for stationing fire vehicles and setting up firefighting equipment, and also reducing the space for civilian vehicles to pull over and get out of the way of fire vehicles.

The loss of street parking would be a major hardship (not an "inconvenience" as MTA staff has characterized it) for residents, merchants, customers and visitors. The existing street parking supply in the area bounded by Scott, Hayes, Baker and Page is approximately 590 spaces. (Certificate, pp. 10, 16.) The Project would mitigate the loss by converting street parallel parking to angled or perpendicular on some blocks of Baker and Scott (which would add 33 spaces), and by eliminating bus stops on Hayes (which would add 13 spaces). However, 11 of the spaces gained are outside the Project area (on Scott between Haight and Waller, and on Baker between Page and Haight). Assuming that these changes do not get reversed after implementation, there will be a net loss of around 11% (66 ÷ 590) of the parking spaces in the Project area; if they get reversed, it would be more. (Some of the angled or perpendicular spaces may well be converted back to parallel because of the increased traffic complexity and additional time required to park. This is especially likely on Baker between Fell and Oak, because the traffic lanes will be reduced, the situation will be made more complex, there will be a higher volume of bicycles, and back-in angled parking is difficult and requires all motor vehicle and cycle traffic to stop.) Even under a narrow view of environmental impact, as the Planning Department has taken in the Certificate, there would be a significant environmental impact of cars circling looking for parking---congestion, idling, pollution, and traffic on the side streets would all be increased. 

The parking loss will be an even greater hardship for residents and visitors at night. Street parking is already scarce in this neighborhood at night, and the Project would significantly worsen it. This is not an "inconvenience," but a personal safety risk, especially for vulnerable people---women, seniors, disabled people---who will have to park further from their residence or the place they are visiting. The risk to personal safety will especially increase for residents returning to their homes late at night, and for visitors returning to their cars late at night after visiting friends in the area.

The major parking loss will especially impact seniors and disabled people, who are limited in how far they can walk and how many streets they can cross (even with bulbouts). Some of the side streets South of Oak are steep and difficult for many seniors and disabled people to climb and to park on, which further adds to the impact of parking loss on seniors and disabled people.

Those who use wheelchair/scooter accessible minivans and vans with side ramps or lifts (the most common configuration) will be especially impacted, because in effect, all street parking spaces (except perpendicular and angled spaces, those on the driver‟s side of a one-way street, and, sometimes, those with sidewalk obstructions such as garbage cans or trees in the exact location of the ramp or lift) are accessible spaces. The Project would remove all street parking on the South side of Oak, which means that all of the wheelchair/scooter accessible parking spaces, and even the custom of temporarily pulling up parallel to open driveway spaces for those purposes, would be eliminated for those three blocks. Converting parallel parking into perpendicular or angled parking would also eliminate spaces that are currently usable by disabled people, worsening the parking loss instead of mitigating it. For the disabled and seniors it means that transport vehicles will have to double park and force them upon exiting the vehicle to dodge bicyclists, many of whom are traveling in groups and at speeds equal to those of vehicles.

Loading and unloading will be made much more difficult for everyone along Fell and Oak in the Project area, and impossible for some. Residents, especially those who don‟t have driveways, won‟t be able to be picked up or dropped off in front of their homes. This will be a hardship and safety risk for everyone, but especially seniors, disabled people and families with small children. Some will choose to park temporarily in the bike lane, potentially causing conflicts and even collisions among residents and bicyclists. Merchants will be heavily impacted because they rely on daily deliveries from suppliers. Suppliers will have to spend more time searching for parking, and will have to park further away, making deliveries more difficult and increasing costs. The loss of yellow zone parking will exacerbate these impacts. Merchants will also be impacted by the increased difficulty of their customers being able to find street parking, and by the increased difficulty of customers being picked up and dropped off. The loss of white zone parking will worsen these impacts. The churches will be impacted; churches in the area have objected to the Project.

It will be more difficult, costly and hectic for residents and merchants on Fell and Oak to have construction, maintenance, painting and similar work done on their homes and businesses. Consider, for example, how difficult, costly, time-consuming and even dangerous it would be to set up scaffolding on a building if the scaffolding truck could not park anywhere on the block where the building is located. Having large contractors‟ vehicles circling the neighborhood looking for parking would further increase congestion, idling, pollution, and traffic on the side streets. Or, if temporary permits were issued for contractors to park on Fell and Oak, they would be blocking the bike lane and part of the buffer strip, putting cyclists at risk by forcing them into the adjacent traffic lane or the sidewalk. In many locations there might not even be space for contractors‟ vehicles because of the raised planters in the buffer strip.

Similarly, it will be much harder for residents and merchants in the area, especially those on Fell and Oak, to move in and out. Where would moving trucks park? Consider how difficult, expensive, time-consuming and even dangerous it would be if moving trucks had to park far from the building to or from which they were carrying large, heavy furniture, equipment, inventory and other items. As with contractors, if temporary permits were issued for movers to park on Fell and Oak, this would be dangerous for cyclists because the moving trucks would be blocking the bike lane and part of the buffer strip. Moving trucks are large, so there might not even be space for them because of the planters in the buffer strip.

The likelihood and impacts of double-parking would increase because of the impediments created by the Project. Delivery trucks, cars, taxis and other vehicles will double-park in the remaining travel lanes, causing sudden, unforeseeable stops due to blocking of travel lanes, with traffic having to change lanes to use the remaining travel lanes. It only takes one double-parked vehicle to cause serious back-ups, congestion, and dangerous conditions on major traffic corridors like Fell and Oak. Besides the danger to motorists and cyclists, this would increase pollution, and probably also noise from horns.

The increased congestion caused by drivers circling the area looking for parking, and by people and goods being picked up and dropped off on nearby streets because they can‟t be on Fell and Oak, may also have an adverse impact on the 21 Hayes bus, which is already an extremely slow bus line, and on the 6 Parnassus, 16X, 33 Stanyan and 71 Haight-Noriega. Although eliminating two stops in each direction is likely to improve running time for the 21 Hayes, this is likely to be more than offset by these congestion impacts.

In sum, these likely impacts are significant, individually and cumulatively.

CEQA EXEMPTIONS MUST BE NARROWLY CONSTRUED, AND THE PROJECT’S IMPACTS ARE TOO GREAT FOR AN EXEMPTION

The approval of the Project was an abuse of discretion and a failure to proceed as required by the California Environmental Quality Act ("CEQA") (Public Resources Code Sections 21000 et seq.). The categorical exemptions invoked by the Planning Department under 14 Cal. Code Regs. (the "Guidelines") Sections 15301(c) and 15304(h) do not apply, since the Project: (1) has the potential to degrade the quality of the environment; (2) has possible effects that are cumulatively considerable; and (3) will cause substantial adverse effects on human beings, either directly or indirectly. (Public Resources Code Section 21083(b).) Therefore the Project cannot be classified as categorically exempt. As described above, there is ample  evidence supporting a fair argument that the Project could cause direct, secondary, and cumulative impacts on traffic, air quality, public safety, parking, loading, disability access, transit and emergency services.

The claimed parking loss mitigations do not effectively mitigate the Project‟s impacts, and, in any event, cannot be used to claim a categorical exemption.

In McQueen v. Mid-Peninsula Regional Open Space (1988) 202 Cal. App. 3d 1136, the court reiterated that categorical exemptions are construed strictly, shall not be unreasonably expanded beyond their terms, and may not be used where there is substantial evidence that there are unusual circumstances (including future activities) resulting in (or which might reasonably result in) significant impacts which threaten the environment.

THE PROJECT IS NOT CATEGORICALLY EXEMPT UNDER THE CEQA EXEMPTION FOR EXISTING FACILITIES

The Project does not qualify for an exemption under Guidelines Section 15301 (also referred to as "Class 1"), the Existing Facilities exemption. That exemption is for the "operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use beyond that existing at the time of the lead agency‟s determination." (Emphasis added.) "The key consideration is whether the project involves negligible or no expansion of an existing use." The Certificate asserts that the Project is exempt under 15301(c) "Existing highways and streets, sidewalks, gutters, bicycle and pedestrian trails and similar facilities…" (Emphasis added.)

There is no bike lane existing on Oak, so the exemption asserted, example (c), could not even arguably apply to Oak.

On both Oak and Fell, the existing conditions in the locations where bike lanes would be installed consist of parking lanes, not bicycle lanes. A parking lane, as defined in California Streets & Highways Code Section 5871(c), is "a paved area adjacent to the curb which is used exclusively for on-street parking. It does not include any portion of the street used for through traffic or as a bicycle lane." (Emphasis added.) The "facility" does not meet this basic definition, since it would completely remove the parking lane and change its use to a separated bicycle lane for exclusive use of bicyclists. (S&H Code Section 890.4(a).) These definitions are mutually exclusive, and the Project involves a complete change of use---far more than "negligible."

The changes the Project would create are not minor alterations. Among other things, it would create bike lanes where none exist; create buffer strips on Oak and Fell with raised, planted traffic islands where none exist; reduce the number of travel lanes on Oak during morning rush hour; reduce the number of travel lanes on Baker between Oak and Fell; remove many street parking spaces; and impose other traffic changes that are cumulatively significant.

The policy entitled "Categorical Exemptions from CEQA" adopted by the San Francisco Planning Commission (Resolution No. 14952, August 17, 2000) lists items eligible for exemption under 15301(c). Item 7 (p.3) is: "Repair and replacement of bicycle ways, pedestrian trails, and dog exercise areas, and signs so designating, where to do so will not involve the removal of a scenic resource. (Creation of bicycle lanes is covered under Class 4(h) below.)"

The Project does not involve repair and replacement of bicycle ways. Even more important, the list explicitly states that creation of bicycle lanes is covered under Class 4(h). (Class 4(h) refers to Guidelines Section 15304(h), discussed below.) Therefore, by the terms of San Francisco‟s own policy, the Project doesn‟t qualify for an exemption under 15301(c).

THE PROJECT IS NOT CATEGORICALLY EXEMPT UNDER THE CEQA EXEMPTION FOR MINOR ALTERATIONS

For reasons similar to those with respect to the Existing Facilities exemption, the Project does not qualify for an exemption under Guidelines Section 15304 (also referred to as "Class 4"), the exemption for Minor Alterations. This exemption consists of "minor public or private alterations in the condition of land, water, and/or vegetation which do not involve removal of healthy, mature, scenic trees, except for forestry and agricultural purposes." (Emphasis added.) The Planning Department has invoked 15304(h): "creation of bicycle lanes on existing rights-of-way." (Emphasis added.) There is no existing right-of-way in the parking lanes on Oak and Fell for bicycle lanes, since the right-of-way in those parking lanes is exclusively for vehicles. (See S&H Code Section 5871(c).)

The Project includes 5-foot wide buffer strips along Fell and Oak, with raised, planted traffic islands, and the exemption asserted, example (h), does not even mention buffer strips or raised traffic islands.

Nor is the Project a minor alteration in the condition of land, water, and/or vegetation. Rather, it is a major alteration and change of use from parking lanes for exclusive use of parking vehicles to bicycle lanes for exclusive use of riding bicycles. It would also create buffer strips on Oak and Fell with raised, planted traffic islands where none exist; reduce the number of travel lanes on Oak during morning rush hour; reduce the number of travel lanes on Baker between Oak and Fell; remove many street parking spaces; and impose other traffic changes that are cumulatively significant.

If the removal of parking lanes or travel lanes and their replacement with bicycle lanes were automatically, categorically deemed a minor alteration that qualifies for this exemption, then it would be possible to remove all parking lanes and all travel lanes, replace all of them with bike lanes, and still qualify for the exemption---certainly an absurd result that is contrary to CEQA and the Guidelines.

THE FAILURE TO CONDUCT ENVIRONMENTAL REVIEW OF THE PROJECT VIOLATES CEQA AND ITS PURPOSES

The Project is part of a larger project, the San Francisco Bicycle Plan (the "Bicycle Plan"). If it applies at all, a categorical exemption must apply to the whole Bicycle Plan project, not just one segment. See Association for a Cleaner Environment v. Yosemite Community College District (2004) 116 Cal. App. 4th, 629, 640. But the court has already held in the Coalition for Adequate Review cases, that the Bicycle Plan is not categorically exempt.

The Environmental Impact Report ("EIR") for the Bicycle Plan did not specifically analyze the Project. The MTA Resolution attempts to skirt this defect by stating that the Bicycle Plan, which included a Long Term project on Oak between Baker and Scott, was analyzed at a programmatic level in the EIR. (MTA Resolution, penultimate preamble paragraph.) Literally, this means that the Bicycle Plan itself (not the Project) was analyzed only at a programmatic level, but even if the Project had been analyzed at a programmatic level, this would not be sufficient. Importantly, the Bicycle Plan EIR predates by several years the essential details of the Project, many of which were only finalized in recent months.

Clearly, the environmental impacts of introducing a bike lane and buffer strip on Oak from Baker to Scott were never studied with regard to Levels of Service at signals, volumes of traffic (both bicycle and vehicle), flows and impacts resulting from bulbouts, parking removal, or impacts on residents, visitors and businesses in the area. In our opinion, such changes constitute major revisions of the status quo that more than warrant a complete and thorough CEQA analysis.

The Bicycle Plan EIR doesn't analyze the Project, but it does make faulty judgments about several issues regarding the segments of the Bicycle Plan that it does analyze, such as parking removal. The impacts of parking removal are described as being of little consequence environmentally, as they are allegedly balanced by changes of habit and transportation modes. This is a terrible assumption, and is essentially repeated in the Certificate. See the discussion of parking in "The Planning Department‟s Exemption Determination is Incorrect and Inadequate" below.

Each of the appellants has attended meetings and hearings about the Project, and has corresponded with MTA about it. It has been clear throughout the process that MTA did not seriously consider any alternatives to the Project, such as proposals by the Haight Ashbury Improvement Association and others for a bike route on Page Street (especially Eastbound) and Hayes Street (especially Westbound). Nor did they seriously analyze mitigation measures such as creating bike lanes for use during the daytime, when bicycle demand is greatest, and allowing street parking at night, when neighborhood parking demand is greatest. By rejecting alternatives and moving forward with design details without conducting environmental review, MTA violated the principles set forth by the California Supreme Court in Save Tara v. City of West Hollywood (2008) 45 Cal. 4th 116, and Laurel Heights Improvement Ass’n v. Regents of the University of California (1988) 47 Cal. 3rd 376. In Save Tara, the Court stated: "Before conducting CEQA review, agencies must not 'take any action' that significantly furthers a project 'in a manner that forecloses alternatives or mitigation measures that would ordinarily be part of the CEQA review of that public project.'"

MTA created the institutional momentum to impose the Project without seriously analyzing its environmental impact or considering alternatives. The Court held in Laurel Heights that "CEQA requires that an agency determine whether a project may have a significant environmental impact, and thus whether an EIR is required, before it approves that project." Further, "A fundamental purpose of an EIR is to provide decision-makers with information they can use in deciding whether to approve a proposed project, not to inform them of the environmental effects of projects that they have already approved. If post-approval environmental review were allowed, EIRs would likely become nothing more than posthoc rationalizations to support action already taken. We have expressly condemned this use of EIRs."

At the MTA/SF Bicycle Coalition workshops about the project held at the San Francisco Day School in 2011, the MTA‟s presentation about the Project at the March 2012 meeting of the Physical Access Committee of the Mayor‟s Disability Council (appellant Chabner was chair of the committee at that time), and the May 2012 MTA hearing in front of an MTA employee, it was clear that MTA was already irrevocably committed to the Project.

It is quite possible that MTA‟s haste in implementing the Project was motivated in large part by political considerations. At the May 2012 hearing, and at other times, various elected officials have spoken in support of the project, including Supervisor Christina Olague and a member of Assemblyman Tom Ammiano's staff, who urged MTA to implement the project by November.

It is also interesting that the last week of September 2012 was the 20th anniversary of Critical Mass in San Francisco, an anniversary marked by fanfare and controversy, and the MTA Board unanimously approved the Project on October 16, just two weeks later, and with almost no Board discussion of the concerns raised by residents and merchants at the meeting and in written comments, or of the potential environmental impacts. Project approval was a foregone conclusion for quite some time, and the manner in which it was handled was politically motivated.

CUMULATIVE IMPACTS AND UNUSUAL CIRCUMSTANCES EXIST THAT PRECLUDE A CATEGORICAL EXEMPTION

Guidelines Section 15300.2 provides that categorical exemptions may not be used in the following circumstances (among others):

(b) Cumulative Impact. All exemptions for these classes [including Class 4] are inapplicable when the cumulative impact of successive projects of the same type in the same place, over time is significant. (c) Significant Effect. A categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.

In McQueen v. Mid-Peninsula Regional Open Space, cited above, the court emphasized that categorical exemptions may not be used where there is substantial evidence that there are unusual circumstances (including future activities) resulting in (or which might reasonably result in) significant impacts which threaten the environment.

There is a reasonable possibility that this Project will have a significant effect on the environment due to unusual circumstances; therefore, per Section 15300.2(c), this precludes use of categorical exemptions. As described above, the Project is located in a densely populated residential, commercial and tourist area in the heart of San Francisco. The Project would make major changes on Fell/Oak, one of San Francisco‟s most indispensable and heavily trafficked East-West thoroughfares, the major thoroughfare leading to and from the Octavia Boulevard entrance and exit for Highway 101. There are no comparable alternatives to these streets for motor vehicles going to and from this primary entrance/exit for Highway 101.

The Project area also includes Divisadero Street, a major North-South thoroughfare and commercial street that includes many stores, restaurants, cafés, a hotel and other small businesses. The population and traffic density, central location, unique nature of the neighborhood, complexity, and indispensable nature of the corridor to and from Highway 101 together constitute unusual circumstances.

In addition, per Section 15300.2(b), the Minor Alterations exemption (Class 4) is unavailable because the Project, together with the bicycle boulevard project on Masonic Avenue approved by the MTA Board, would have significant cumulative impacts. Masonic Avenue is only three blocks from Baker Street, the Westernmost street of the Project area. The two areas are contiguous and essentially are part of the same neighborhood. (In fact, as part of the Project MTA staff considered removing the 21 Hayes bus stop on Hayes/Central in order to mitigate the parking loss. Central is only one block from Masonic.) The Masonic project would remove all street parking on both sides of Masonic for over half a mile, including through Fell Street, would reduce travel lanes on Masonic, and would make other major changes in the neighborhood. These would have environmental impacts similar to those of the Project, including increasing congestion, vehicular idling and pollution. Because of the close proximity of the Project to the Masonic project, the cumulative impact of both projects must be considered together.

THE PLANNING DEPARTMENT’S EXEMPTION DETERMINATION IS INCORRECT AND INADEQUATE

The Planning Department, in support of its determination that the Project is categorically exempt from environmental review, discusses certain matters in the Certificate, including Level of Service analysis for traffic on Fell and Oak, and potential impacts on transit, pedestrians, bicycles, emergency access, loading and parking. These discussions are incomplete and inadequate, and they ignore or understate the likely impacts of the Project. Importantly, the data and analyses underlying these assertions have not been disseminated to the public for consideration before the October 16, 2012 MTA Board hearing (or at any other time).

In great contrast, if the MTA had commissioned an EIR, the EIR would have been detailed, would have been made widely available for review and comment, and would have required detailed responses to public comments in order to be certified as final. Some information has been made available in response to Sunshine Ordinance requests by appellants and others, but the public‟s right to know the data and analyses supporting the Project, and on which the categorical exemption from environmental review is based, and MTA/the Planning Department‟s obligation to provide this information to the public in a comprehensive, organized and systematic fashion, are not satisfied by responding to Sunshine Ordinance requests.

Traffic Level of Service. The traffic Level of Service analysis is conclusory and inadequate. No information is given in the Certificate about who conducted the measurements, how they were conducted, what instruments were used to measure traffic delay, the dates traffic delay was measured, or how many days traffic was measured. Nothing is stated about who analyzed the data. No explanation is given of how "delay" is defined.

Each of us having lived in the neighborhood for many years and driven or been passengers on Oak and Fell hundreds of times, it certainly seems to appellants that the number of seconds stated for delay during peak hours under existing conditions (ranging from 6 to 21 seconds at the various Oak intersections in the Project area, and from 8 to 16 seconds at the Fell intersections, in both cases without the expected impact of the Project) are grossly understated. And then, crucially, no explanation is given for how the expected delay impact of the Project was estimated. The Certificate devotes much of its limited discussion of traffic analysis to estimating delays in the year 2035, concluding for most intersections that the Project impact would be 0, 1 or 2 seconds, which seems an exercise in false precision if ever there was one.

There are no data or analyses of total travel time along Fell or Oak within the Project area, nor for the blocks of Fell and Oak outside but near the Project area, let alone a comparison of these travel times before and after the Project. For example, it would be important to know the impact of the Project on travel time from Oak/Stanyan to Oak/Octavia at various times of day, but the Certificate is silent about this. Nor is there any discussion or analysis at all of traffic impacts on streets besides Fell and Oak, such as Baker, which is losing travel lanes and adding a more difficult, cumbersome, slower parking scheme. Impacts on the other cross streets, and on parallel nearby streets such as Hayes and Page, also are completely ignored. Perhaps this is because the Certificate denies that there will be increased congestion due to parking loss (see below).

Although the Certificate does not state who performed the traffic Level of Service analysis, appellants have been informed that it was MTA staff. Therefore, no independent traffic study was done; the only analysis, inadequate as it is, was performed by employees of the Project sponsor.

In contrast, two recent major projects in the area were required to do thorough traffic studies. The Falletti's development, which is in the Project area, performed an extensive traffic  study in support of a negative declaration. The Whole Foods project, near the area, did a full EIR, including two traffic studies, one in the winter and one in the spring. The idea behind performing two studies was that there were likely to be fewer cyclists, pedestrians and vehicles in the winter than in the spring, and it was important to ascertain and account for conditions throughout the year in evaluating the environmental impact of the development.

Transit. The Certificate devotes one paragraph each to a discussion of the impact on the 21 Hayes and 16X bus lines (plus one paragraph each to a discussion of the expected impact in the year 2035; as above, an exercise in false precision). It concludes that the impacts would be minimal, estimating slightly increased or decreased delays (such as 1 or 2 seconds at various intersections) for the 16X, and doesn‟t discuss delays at all for the 21 Hayes. With respect to the 16X, there is no discussion of how the increased or decreased delays were estimated, nor by whom. Asserting increased or decreased delays of 1 or 2 seconds implies a level of precision that is highly unlikely, essentially a rounding error. Because the Certificate denies there will be increased congestion caused by drivers circling the area looking for parking, and by people and goods being picked up and dropped off on nearby streets because they can‟t be on Fell and Oak, there is no mention of possible delays on the 21 Hayes, which is already maddeningly slow. The discussion of the 16X also ignores these impacts.

There is also no discussion of potential impacts on the 6 Parnassus, 33 Stanyan and 71 Haight-Noriega, all of which have stops in the area and would be impacted by diversion of traffic to the nearby streets and by cars circling in search of parking.

Pedestrian. In the three sentences devoted to this topic, the Certificate mentions bulbouts, continental ladder markings and advanced limit lines, concluding that pedestrian conditions would improve. No observations, data, studies or analyses are cited. There is no mention whatsoever of the likely dangers to pedestrians discussed in the "Project Impacts" section of this Memorandum.

Bicycle. In the three sentences devoted to this subject, the Certificate mentions the striped, landscaped buffers on Oak and Fell, concluding that the Project would improve bicycle conditions. There is no mention whatsoever of the likely dangers to cyclists discussed in the "Project Impacts" section of this Memorandum, especially the danger of encouraging more cycling on high-speed, heavy volume, complex streets such as Oak and Fell instead of on slower, lower volume, simpler streets, and the danger of being hit by cars backing out of driveways.

Emergency Access. In the two sentences devoted to this topic, the Certificate states that the project would not close any existing streets or entrances, and emergency vehicle access would not be impeded. There is no mention whatsoever of the likely impact of having so many bulbouts on so many adjacent and nearby intersections in a dense area, discussed in the "Project Impacts" section of this Memorandum. For example, as discussed in that section, if a bulbout impedes delivery vehicles, causing them to go around the block, wouldn't it have a similar impact on large fire engines and trucks?

Loading. In the one paragraph devoted to this subject, the Certificate describes the location of the five loading spaces that would be eliminated on Oak, emphasizes that other loading spaces would be preserved, and concludes that because of those other loading spaces and the availability of off-street loading for two gas stations and Kelly Moore Paints, no significant loading impacts would occur. No observations, studies, data or analyses are cited. The discussion ignores the testimony of merchants in the area about the hardship the elimination of the five yellow zone commercial loading spaces would cause to their businesses. It ignores the fact that the area is already congested, and the impact of the net loss of loading spaces and overall large loss of street parking.

Importantly, there is no discussion whatsoever of the hardship and safety issues for residents of Oak and Fell who could no longer be picked up or dropped off in front of their homes, and could no longer load and unload objects and packages in front of their homes. There is also no discussion of the loss of the white zone passenger loading spaces.

Parking. The Planning Department claims that loss of parking spaces is not an environmental impact under CEQA, just a social effect. They acknowledge, however, that parking conditions "may be of interest to the public and the decision makers," and therefore present a parking analysis for information purposes. They state that under CEQA a project's social impacts need not be treated as significant impacts on the environment but acknowledge that environmental documents should address the secondary physical impacts that could be triggered by a social impact, citing CEQA Guidelines Section 15131(a). They state that because the availability of parking changes over time, parking is not a permanent physical condition, and therefore not an environmental impact. (The discussion of parking is at pp. 16 and 17 of the Certificate.)

Appellants do not agree that parking is not an environmental impact. We believe it is. CEQA defines the environment broadly to include "physical conditions which exist within the area which will be affected by a proposed project." (Public Resources Code Section 21060.5.) "Environment" means the physical conditions which exist within the area which will be affected by a proposed project including land, air, water, minerals, flora, fauna, ambient noise, and objects of historical or aesthetic significance. The 'environment' includes both natural and man-made conditions." (Guidelines Section15360.) Many of these things change over time (ambient noise, especially, is ephemeral and fluctuates), yet the law considers them part of the physical environment. Also, the Planning Department conflates the availability of parking spaces at any time (a function of supply and demand at a particular point in time) with the City‟s choice about what uses to assign to specific pieces of land in a project area (for example, travel lanes, parking, bike lanes, open space); those pieces of land, and their uses, are part of the physical environment.

Removing parking spaces and making existing parking deficits worse are significant impacts that must be analyzed and mitigated under CEQA; Land Value 77 v. Board of Trustees of the California State University (2011) 193 Cal. App. 4th 675, 679-680. Traffic analysis that failed to analyze impacts caused by eliminating parking was held inadequate; Sacramento Old City Assn. v. City Council of Sacramento (1991) 229 Cal. App. 3d 1011, 1028. "Traffic and parking have the potential…of causing serious environmental problems," Sacramento Old City.

Loss of street parking "indicated that a finding of significant environmental effect was mandatory," Friends of "B" Street v. City of Hayward (1980) 106 Cal. App. 3rd 988, 1003.

The Planning Department states that 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." But after acknowledging this possibility, the Planning Department dismisses it in two conclusory paragraphs full of boilerplate. They claim: "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 facilities, shift to other modes of travel, or change their overall travel habits." (Emphasis added.)

The Certificate goes on to state: "The transportation analysis accounts for potential secondary effects, such as cars circling 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 further away if convenient parking is available. Moreover, the secondary effect of drivers searching for parking is typically offset by a reduction in vehicle trips due to others who are aware of constrained parking conditions in a given area." Because of this, the Planning Department concludes that any secondary environmental impacts resulting from parking shortage would be minor. (The last sentence quoted is circular, and if it were really true, there would be little or no parking-related congestion anywhere because, as parking became scarcer, people would either change transportation modes or stay away from an area altogether, and the area would remain static.)

No factual basis is stated for these conclusory assertions---no observations, no studies, no investigations, no surveys, no data, no measurements, no statistics, no analyses of the particular conditions in this particular neighborhood, no interviews, no testimony of residents, merchants or visitors---just the "experience of San Francisco transportation planners." The time period on which their opinion is based is unstated. The identity, professional qualifications, expertise, experience, and track record of these anonymous transportation planners are not revealed, nor is any factual, empirical basis whatsoever given for their opinion.

Moreover, the statement quoted is internally inconsistent: if drivers seek parking further away from the Project area, then they would be driving further, therefore causing more congestion, more idling and more pollution. The question is: how much? But neither MTA nor the Planning Department has made a factually based attempt to answer it.

In October 2012, pursuant to the Sunshine Ordinance, appellant Chabner requested from MTA and the Planning Department:

"All documents regarding the factual statements, analyses and conclusions in the second, third, fourth, fifth and sixth paragraphs of the section entitled 'Parking' in the Exemption from Environmental Review for the SFMTA Fell & Oak Streets Bikeways Project." [Note---The Parking section has six paragraphs.]

MTA responded: "After reviewing our records, the SFMTA has determined that the agency does not have any records responsive to your request."

The Planning Department responded: "There is nothing to provide since the 'Parking' standard language does not reference any specific document, is not based on a specific study, and is grounded on the expertise of San Francisco transportation planners, as stated in the language."

It's revealing that the Planning Department response to the Sunshine request refers to the "Parking standard language" in the Certificate: they admit that their discussion is mere boilerplate! (This appears to be the same boilerplate used in the Bicycle Plan EIR.) MTA and the Planning Department have no factual basis for their claim that parking impact would be minor and have completely ignored the testimonies to the contrary from residents and merchants referred to in the "Project Impacts" section of this Memorandum.

Most people who own cars are very unlikely to sell them even if forced into longer searches for street parking. Nor are they likely to readily switch to, or increase their use of, a flawed transit system, especially at night even though the parking shortage is worse at night. And for those who rent or own housing that includes off street parking, the presence of increased bicycle traffic that increases safety risks would still not result in major abandonment of the motor vehicle.

THE PROJECT DISCRIMINATES AGAINST PEOPLE WITH MOBILITY DISABILITIES

Accessible transportation, and an equal opportunity to choose among modes of transportation, are essential to living a full, independent life, and are central disability rights. The Americans with Disabilities Act, 42 USC Section 12101 et seq, and California disability rights laws, including California Civil Code Sections 54 et seq, (the ADA and California disability rights laws are referred to as the "Disability Rights Laws") prohibit discrimination on the basis of disability in programs of local government, use of streets and sidewalks, and transportation. California Civil Code Section 54(a) provides that "Individuals with disabilities or medical conditions have the same right as the general public to the full and free use of the streets, highways, sidewalks, walkways… public facilities, and other public places." Title II of the ADA requires local governments to provide people with disabilities an equal opportunity to benefit from all of their programs, services and activities. Sidewalks, streets and parking are programs provided by ADA Title II entities, and therefore are subject to ADA requirements.

Most people with major mobility disabilities are unable to bike, ride a motorcycle, or use a skateboard, razor style scooters, rollerblades or roller skates. Most slow walkers and many manual wheelchair users can go only a limited distance. Although many pedestrians who use electric wheelchairs and scooters are able to go far, some of them, too, can go only a limited distance. Finding a wheelchair accessible taxi is problematic. San Francisco's public transportation system has access limitations, flaws and gaps. Individual circumstances also limit many disabled people's ability to use public transportation. Rain and cold weather also limit the distance many disabled people can walk or roll, and also limit their ability to use public transportation. Therefore, many people with mobility disabilities rely heavily on automobiles for transportation, both as drivers and as passengers.

Many seniors and disabled people rely on service providers coming to their homes, including caregivers, Meals on Wheels, physical, respiratory and occupational therapists, and wheelchair repair companies. These providers typically use automobiles, so when street parking is removed, it becomes more time-consuming and costly to provide these services, and people with disabilities and seniors are impacted.

If he or she owns a vehicle, almost everyone who uses an electric wheelchair, and many who use scooters and manual wheelchairs, have either a lowered floor minivan with a passenger-side ramp or a full-size van. (Lowered floor minivans are also available with the ramp in the rear, but this configuration is rare except in taxis. For full-size vans, a side lift is the most common configuration.) For those with accessible minivans and vans with ramps or lifts on the side, all street parking spaces (except perpendicular and angled spaces, those on the driver‟s side of a one-way street, and, sometimes, those with sidewalk obstructions such as garbage cans or trees in the exact location of the ramp or lift) are, in effect, accessible spaces even though they are not blue zones. In fact, disabled people park in regular street parking spaces far more often than in blue zones because: (a) the number of blue zones is very limited and they are often occupied; and (b) quite often a regular space is available closer to the destination than a blue zone.

Therefore, removing street parking spaces and replacing parallel spaces with perpendicular or angled ones disparately impact people with mobility disabilities.

The Project would remove all street parking on the South side of Oak, which means that all of the effectively wheelchair/scooter accessible parking spaces would be eliminated for those three blocks. The parking spaces on the North side of Oak would remain, but it would be extremely dangerous for people in wheelchairs/scooters to use them because the ramp or lift would be deployed into the travel lane. Converting parking spaces on some of the side streets, which are currently parallel parking, into perpendicular or angled spaces also would eliminate spaces that are currently usable by wheelchair/scooter users, thereby adding to the parking loss instead of mitigating it. (Baker between Fell and Oak, and Scott between Haight and Waller, are flat, and the loss of half the accessible parking on those blocks would worsen the hardship. Baker between Page and Haight is moderately sloped, and there is already perpendicular parking on the East side, so converting the West side to perpendicular would make that entire block off-limits for parking by wheelchair/scooter users.)

Not only wheelchair/scooter users, but people who walk slowly and with difficulty would also be harmed and disparately impacted by the loss of parking spaces on Oak and the elimination of parallel parking on the side streets. 

As described above, the Project would also make it more difficult, dangerous and stressful for disabled people, including wheelchair/scooter users and people who have difficulty walking, and for seniors, to be picked up and dropped off.

These impacts discriminate against people with disabilities and violate the Disability Rights Laws.

REMEDIES REQUESTED

1. Set aside all approvals of the Project, and the Categorical Exemption.

2. Declare that any future proposal to implement the same project must be preceded by an environmental impact report fully analyzing all impacts and proposing effective mitigations for each of the Project‟s possible impacts on parking, traffic, transit, noise, air quality, emergency services, public safety, and human impacts. Cumulative impacts must be analyzed taking into account all past, present, and reasonably foreseeable projects that will also affect traffic, transit, parking, noise, air quality, and public safety on Oak and Fell Streets and the entire area. Spillover and secondary impacts from removal of street parking must also be analyzed, along with any impacts caused by mitigations, including traffic congestion caused by signal timing. The analysis must include real-time on-ground traffic counts during AM and PM peak periods, taken at a variety of representative days of the week and times of the year.

3. The EIR must propose effective mitigations that eliminate each of the Project‟s impacts, including consideration of avoiding each impact altogether by not implementing the Project.

4. The City must implement effective mitigation before Project implementation.

5. The City must propose a plan to effectively comply with the Disability Rights Laws, provide an opportunity for meaningful input and comment on such plan, and incorporate such plan in a revised Project.

6. Further consideration of the Project must be stayed until the City has complied with CEQA, the Disability Rights Laws and other applicable statutes and regulations.

7. Such other remedies as may be appropriate.

Appellants request copies by e-mail, no later than five days in advance of the hearing on this appeal, of all documents submitted by MTA, the Planning Department, the City Attorney’s office and other city agencies in opposition to this appeal. (The Clerk of the Board of Supervisors has appellants’ e-mail addresses.)

Appellants reserve the right to submit supplemental memoranda, rebuttals and other documents.

DATE: December 3, 2012

Mark Brennan

Howard Chabner

Ted Loewenberg