San Francisco, CA 94103
PUBLIC COMMENT, MTA BOARD MEETING OF MARCH 28, 2014, AGENDA ITEMS 6, 7, AND 8 ("TEP" PROJECT)
BY E-MAIL TO: Edward Reiskin; Roberta Boomer
This is Public Comment on Agenda Items #6, 7, and 8, the "Transit Effectiveness Project" ("TEP") (herein referred to as "Project"), on the MTA Board's March 28, 2014 Agenda. Under the Brown Act and CEQA, you are legally obligated to accept and consider this Comment and to place it in all public files on the Project. Therefore, please assure that this Comment has been distributed to all members of the MTA Board and placed in all applicable files on the Project. As we and others have stated, the Environmental Impact Report ("EIR") on the Project falls far short of legal adequacy and may not be lawfully certified, because it is not adequate, accurate, or objective, and neither that document nor any of the supplemental documents, nor the "CEQA Findings" comply with CEQA and the National Environmental Policy Act ("NEPA"). You may therefore not lawfully approve the Project or any part of it as proposed.
More than 1,200 pages of documents were not released or publicly available until a few days before the scheduled hearing, with many still claimed to be unavailable, depriving the public of meaningful opportunity to get these documents, review them, and provide input on the environmental review and proposed legislation to adopt the Project. These include the "Responses to Comments" ("RTC") document, "supplemental variants," findings and CEQA Findings, and many other documents that are material to your deliberations and to the public interest on this Project. These documents include changes to the Project, changes to those changes, its environmental impacts affecting the environmental analysis, mitigation, and alternatives requirements of both CEQA and NEPA.
Further, the Planning documents and the Agenda before the Planning Commission on March 27, 2014, misinformed the public by stating that the public had no right to comment further on this Project and its environmental review before that Commission and other decisionmaking bodies, which is materially misleading, denying the public's right to comment on this Project and the proposed legislation approving it as well as the EIR certification. Contrary to those false statements, the public has the right to comment on any CEQA and/or legislative matter before any relevant agency, including the proposals on this Project before the Planning Commission today and this Board tomorrow.
The unusual and highly inconvenient scheduling of this hearing before the MTA Board at 8:00 a.m. on Friday, March 28, 2014, precludes public attendance by many people, including all those people who have to be at work during business hours. That scheduling, combined with the extremely short notice and the many documents generated on the Project only days earlier, deprive the public of the opportunity to meaningfully participate in the environmental review, the review of the Findings, and deliberations on legislation to adopt and implement the Project.
Further, severing the certification of the EIR by the lead agency, the San Francisco Planning Department, from your agency's deliberations on CEQA Findings, the statement of overriding considerations, and the proposed adoption of the Project and its implementation is improper, particularly since your agency is claiming to have conducted the CEQA "Findings" by "incorporating by reference" the EIR's erroneous conclusions. The required Findings were publicly unavailable until March 24, 2014, even though they are essential to satisfy CEQA's requirement to provide effective and enforceable mitigation of each significant impact identified in the EIR, and to provide feasible alternatives to the Project that eliminate or mitigate impacts. The required Findings must be approved as part of the environmental review process, not as an afterthought to your agency's proposed adoption of the Project.
In fact, the Planning Department refused to provide a copy of the Findings, stating they were "attorney-client privileged," which is preposterous, since they are a public record required by CEQA. The proposed Findings are an essential part of the environmental review of the Project. Findings may not defer to or as here claim to "incorporate" an EIR's conclusions by reference. Instead, the Findings must be independent of the EIR and must assure effective and enforceable mitigation of the Project's impacts identified in the EIR. Here, the Findings are legally inadequate, since they are not independent of the EIR but simply claim to incorporate parts of that document by reference instead of making independent findings. Nor do they analyze or mitigate the Project's significant impacts.
The Findings falsely claim that the Project will have no direct, indirect, and/or cumulative impacts on land use, parking, traffic, transit, air quality, noise, emergency and community services, and human impacts. Further, the Findings state that of at least 62 impacts on "transportation" identified in the EIR, none will be mitigated. That failure to mitigate the Project's impacts plainly violates CEQA's fundamental mandate and fails to comply with the requirement of Findings, including feasibility findings supported by substantial evidence, which are absent from both the EIR and the Findings themselves. The rote recitation that significant impacts are "unavoidable" also conflicts with CEQA. The "alternatives" findings are also legally inadequate, since they (and the EIR) include no analysis of a range of alternatives that would eliminate or avoid the Project's significant impacts. There are no feasibility findings, and none of the Findings are supported by substantial evidence as required.
The proposed "statement of overriding considerations" is also legally inadequate, because it was not preceded by legally adequate Findings, including infeasibility findings. It also fails to weigh the Project's significant impacts against its claimed benefits. In fact, even though the Findings acknowledge at least 62 significant impacts on the environment, not a single one of those impacts is mentioned in the statement of overriding considerations.
Previous comments on the DEIR on the Project, which are incorporated here by reference, have received no coherent response in the RTC document, but instead have been dismissed in a summary fashion without addressing their substance. The "responses" lack objectivity, and instead adopt a defensive posture without responding to the comments and questions raised on the Project.
There is no time or adequate information for a comprehensive comment on all of the additional flaws in the voluminous supplemental documents and Findings, and only a few examples can be provided here. There are no coherent responses to the lack of a stable, finite, and accurate Project description, baseline data, the identification of significant direct, indirect, and cumulative impacts on traffic, transit, loading, parking, air quality, and human impacts. Those significant impacts are certain from the Project's proposals to remove traffic lane capacity, turning restrictions, bulbouts and other traffic obstructions, bicycle lanes and on-street bicycle parking, "parklets," and other changes to public streets and thoroughfares that require analysis and mitigation under CEQA and NEPA. Further, the removal of bus stops will also have impacts on humans, since they will cause delays and hardship from people having to walk much farther to reach a bus stop, and having to wait longer at that stop for passengers to get on and off buses.
As already stated, the EIR fails to provide a finite, accurate, and stable project description. The claim that the EIR is both a "programmatic" and "project-specific" EIR is false and legally erroneous. The EIR is simply a mish-mash or wish list with some generalized rhetoric claiming to be a "programmatic" review, but it contains no coherent phased schedule or commitment to Project-specific, legally adequate environmental review, or dates when supplemental EIR(s) will be issued that contain required Project-specific review and mitigation of the Project's impacts. There is no analysis of any discrete phase(s) or any commitment to supplemental environmental review at a project-specific level as required for "programmatic" review.
Further, as stated in the Findings, it is uncertain from the EIR that MTA will ever implement the entire project, i.e., all of the elements of the proposed TEP, affecting direct, indirect, and cumulative impacts analyses. Rather the proposal apparently intends to allow that agency to pick and choose certain elements to implement over the next two and one-half years or longer. That implementation was not fully disclosed in the Project description and has not been fully and properly analyzed for its direct, indirect and cumulative impacts. Piecemeal implementation under a claim of "programmatic" review without analysis and mitigation at each discrete phase is prohibited by both CEQA and NEPA. For example, the late revision to operate half of the 8X to Fisherman's Wharf (i.e., north of Broadway) appears to be tied to the proposed #11 downtown connector, but no specific commitment is made to implement these two changes at the same time. In a broader sense, it appears that the MTA could implement parts of the project at various times and not others, resulting in imbalances in transit service with direct, indirect and cumulative impacts in combinations that have not been analyzed for environmental review.
The later-added "project-level" descriptions of three TTRP corridors were not in the DEIR except as programs. Thus project-specific descriptions of particular intersections along those corridors that will have specific significant impacts were not provided in the DEIR, depriving the public of meaningful comment on the Project's impacts on major traffic corridors, which requires recirculation of the EIR. These are major transit, commercial and traffic corridors.
The shifting Project description in the RTC, "supplemental variants" and other late-released documents require recirculation, because the public has had no opportunity to meaningfully comment on the significant changes affecting the Project description, analysis and identification of impacts, mitigation measures, and analysis of alternatives. (See,e.g., 14 Cal. Code Regs. ["CEQA Guidelines"] section 15088.5.) Residents and businesses along these corridors had no way to know from the DEIR the likely impacts because the proposals had not been fleshed out, and staff proposes no recirculation, offering no opportunity for public comment on impacts.
The new addition of major corridors to the "TEP" project, such as the proposed removal of traffic capacity, reduced lane capacity, obstruction of traffic and turning, and the removal of parking on the Irving Street corridor to install bicycle parking, "parklets," bulbouts, and other traffic obstructions has received no environmental review, impact analysis and mitigation, or any meaningful opportunity for public review, plainly violating CEQA, clearly not leading to transit "effectiveness."
Other reasons stated in public comment on the DEIR still apply on why the EIR is not legally adequate, accurate, or objective, and the public has not been given a meaningful opportunity to participate in review and deliberations before this Board. Therefore, and because the EIR and Findings fail to comply with CEQA and NEPA, the Board may not lawfully adopt legislation approving the Project. The EIR must be recirculated due to the many material changes made after public comment to the DEIR, and its many flaws must be corrected. Only after a legally adequate EIR has been publicly recirculated can any adoption proceedings take place. This proceeding must be continued to allow the public the right to meaningfully comment before this decisionmaking body.
This Board must therefore reject all proposed legislation to approve the TEP and to implement any part of it.
DATED: March 27, 2014
SIGNED: Mary Miles