Public comment

A public comment submitted yesterday to the Planning Commission:

FROM:

Mary Miles, Attorney at Law (SB #230395)

for Coalition for Adequate Review

TO:

John Rahaim, Director of Planning; Jonas Ionin, Commission Secretary, President Rodney Fong, and Members of the San Francisco Planning Commission

1650 Mission St., Ste. 400

San Francisco, CA 94103

DATE: March 3, 2016

RE: Public Comment: March 3, 2016 Planning Commission Agenda Item 7 ["Resolution Modifying Transportation Impact Analysis"]

This letter is public comment opposing the proposed "Resolution Modifying Transportation Impact Analysis" [hereinafter abbreviated "Project," "TSP," or "Resolution"] at Item 7, on the Planning Commission's March 3, 2016 Agenda. Please distribute this letter to all Commissioners before any decisionmaking and place a copy in all applicable files on the Project. This Comment incorporates by reference all previous public comments submitted by this commenter to this Commission, to the San Francisco Board of Supervisors, and to the San Francisco Municipal Transportation Agency.

The TSP Project proposes eliminating the critical need to analyze and mitigate the significant transportation, air quality, noise, land use, and other impacts from unregulated development, violating the legislative mandate, purpose, and procedural requirements of the California Environmental Quality Act (CEQA, Pub. Res. Code §21000 et seq.) and existing implementing Guidelines.) 

1. The Proposed TSP Is A Project under CEQA and NEPA.

The TSP is itself a project under CEQA and NEPA (National Environmental Policy Act) that has the potential to cause significant impacts on traffic, transit, air quality, noise, land use, emergency services, and human impacts that are all part of the environment defined under CEQA, since the TSP Project will affect and drastically increase congestion by exempting from review all of those impacts. (See, e.g., 14 Cal. Code Regs. ["Guidelines"] §15378(b)(4) defining a project ["The creation of government funding mechanisms or other government fiscal activities which do not involve any commitment to any specific project which may result in a potentially significant physical impact on the environment."].) As such, adopting the Resolution is subject to CEQA's requirements of environmental review and findings on mitigation and alternatives to eliminate or reduce to insignificance those impacts. The proposed TSP is clearly a project under Guidelines §15378(a), since it has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment and is an activity directly undertaken by any public agency. 

The Project does not fall within the exceptions of Guidelines §§15378 or 15060(c)(3), because it clearly is a project and clearly will have significant impacts on traffic, transit, parking, air quality, and land use by eliminating the critical need to analyze and mitigate the significant transportation, air quality, noise, land use, and other impacts from unregulated development.

2. The Proposed Resolution Is Based on Speculation and Is Premature and Unripe.

The Proposed Resolution is premature and unripe, because no amended CEQA Guidelines have been adopted by the State, and the proposed "amended Guidelines" remain in dispute and may not be adopted in a form supporting the proposed Resolution. A challenge of the proposed amended Guidelines could result in changes that would contradict the proposed local Resolution, or in nullifying proposed Guidelines or parts of them. 

This Commission is without authority to impose proposed changes without and in advance of state authority, particularly in view of the proposed TSP's plain conflicts with CEQA.

City's eagerness to excuse itself from environmental review of the transportation impacts from its unregulated development is based on the speculation that future revision of CEQA Guidelines will allow it to do so. That speculation is premature and irresponsible. Any legislation must be serve the public good. City may not presume that its wishes will be fulfilled at the state level. Moreover, amendments to CEQA Guidelines apply prospectively only, not retrospectively. (Guidelines §15007) City's proposed legislation would therefore be null and void if adopted before any revised Guidelines, even assuming such Guidelines allowed such legislation.

3. The Proposed TSP Excludes the Vast Majority of Travelers Who Travel by Motor Vehicles.

City's TSP Project proposes replacing the Level of Service (LOS) methodology for analyzing impacts with a Vehicle Miles Traveled ("VMT") "metric," which would effectively exempt San Francisco from analyzing all transportation impacts, since VMT on projects in San Francisco would not reach a regional average arbitrarily set as the threshold or standard for a significant transportation impact under VMT methodology. That compartmentalization would unlawfully insulate City from analyzing the transportation impacts of all projects by restricting the analysis to individual projects within San Francisco's geographic borders while ignoring the large number of commuters and travelers to and from areas outside the city's borders. 

You may not lawfully ignore the impacts of the TSP Project on the majority of your constituents, and you are without authority to make a decision on this legislation without state authority through the CEQA Guidelines, which you do not have.

Even if such authority existed, analyzing only a project's VMT would result in a piece-mealed and evasive analysis that completely ignores a project's cumulative transportation impacts when combined with other projects. 

Public transportation projects would also be improperly exempted from environmental review, since they would not generate any VMT, regardless of how much congestion they do generate, including "road diets," traffic lane and parking elimination, "bicycle improvements," "pedestrian improvements," BRT's, and other public projects with significant impacts on traffic, transit, parking, air quality, and noise. Not coincidentally, City's "Sustainability Impact Fee" cash cow proposes to fund such projects without CEQA review, with lavish public funding excusing proportionate developer fees. While San Francisco proposes to abnegate its greater regional responsibility by ignoring the significant impacts of development and other projects, it may not lawfully do so under CEQA and NEPA. 

Under the VMT methodology, San Francisco's increased internal congestion would also be exempt from environmental review, regardless of the congestion impacts San Francisco inflicts on itself and other areas with unregulated residential and employment hubs for tech industries, City and other government employment, sports arenas, rezoning, and overdevelopment of high-rise, high-density residential buildings without mitigating the obvious significant direct, indirect, and cumulative transportation impacts of those projects. 

City's fantasy that pouring more money into bicycle and pedestrian "improvements" that hinder and obstruct motorized traffic will motivate people to abandon motor vehicles has proven futile for the entire 44 years of City's "Transit First" rhetoric. According to City's own data and that of the United States census, the vast majority of travelers still choose automobiles as their preferred mode of travel in San Francisco and the greater Bay Area. You are required to serve the interests of your constituents and taxpayers, not to ignore and deliberately act against them.

San Francisco's deregulation of residential development has transformed San Francisco into an overcrowded bedroom community for tech industries with those employees often commuting up to 50 miles to live in unregulated, densified residential structures in overdeveloped areas of the City. At the same time, employment hubs in overdeveloped downtown, Civic Center, mid-Market, and other areas generate massively increased commuter inbound traffic and transit use. The fact remains, however, that many workers commuting to San Francisco cannot afford to live there, and have no practical options other than driving to get to work. The claim that any of these travelers will abandon car travel is irresponsible fantasy. 

The Project is a transparent scheme to exempt City from complying with CEQA's requirements of environmental review and mitigating significant impacts on the environment from its own actions deregulating and permitting runaway overdevelopment. The Project plainly violates CEQA and NEPA. 

4. VMT is not an appropriate measure of transportation impacts in San Francisco, because it excuses the city from mitigating transportation impacts from unregulated development. 

City proposes a threefold scheme to exempt itself from mitigating transportation impacts from its approval of every residential development project before it for the past eight years: a) by declaring nearly the entire city a "Transit-Oriented Infill Project" zone; b) by proposing that the LOS "metric" be replaced by VMT; (c) by reducing and failing to maintain physical roadway capacity for automobiles," which City claims would not result in significant impacts. The Project's change to a VMT metric would result in exempting most development projects from environmental review under CEQA. 

The "Executive Summary" ("ES") bases its conclusions on false and unsupported statements too numerous to address in this Comment. For example, the ES claims without support that "a common solution to improving LOS is widening a roadway. Widening a roadway often increases intersection crossing distances for people walking; encourages traffic speeds to unsafe levels on City streets; increases vehicular traffic levels because of induced demand, which also increase air pollutant emissions, including greenhouse gases" and "may lead to physical displacement of people's businesses or homes." (ES, p.5) That rhetoric is false and unsupported by any evidence.

The ES also recites the fiction that "LOS significance criteria encourage harmful sprawl development. Sprawl development adds a substantial amount of vehicles onto the overall regional transportation system…Conversely, smart, infill development adds a substantially lower amount of vehicles onto the overall regional transportation system, but has numerous LOS impacts. This is because the existing number of people and levels of traffic in a vibrant, urban area where infill development occurs are much higher than in greenfield area where sprawl development occurs." (ES, p.6) Again, no support is provided for this irrelevant fiction. 

The LOS methodology for measuring impacts does not cause the impacts or add vehicles to the roadway. By its formulaic speculation finding no impacts, the VMT metric is not going to decrease the number of vehicles on the roadway or mitigate their impacts, nor accurately measure the significant impacts of development and other projects. 

Further, the underlying problems of workers commuting to distant jobs or living in distant communities are caused by the unaffordability of housing in San Francisco, the unavailability of housing near employment centers in Silicon Valley, and/or the desire of tech industry employees to live in San Francisco 50 miles from their jobs. Those problems are not solved by increased densification, congestion, and irresponsible development and ignoring environmental impacts.

5. VMT Violates CEQA's Procedural Requirements.

Contrary to CEQA's requirement of adequate methodology to measure transportation impacts, VMT requires no baseline existing conditions, which is the starting point for measuring impacts. Instead, VMT is arbitrary, formulaic speculation, violating the procedural and substantive requirements for analyzing significant impacts under CEQA, which in simple terms must compare existing conditions with conditions caused by a proposed project in quantifiable terms. VMT may speculate about vehicle miles traveled to and from unregulated developments, but it does not measure impacts, since vehicle miles traveled are not themselves impacts.

Congestion, air pollution, noise, and delay are impacts on the environment and humans, but VMT ignores those impacts caused by unregulated development. Those impacts affect not only car drivers but people who use public transportation systems, which are also delayed by congestion. VMT also fails to measure impacts from projects that do not generate additional "vehicle miles traveled" but that create significant impacts on transportation by creating congestion and decreased road capacity. VMT is thus a speculative paper fiction that excuses developers from having to mitigate those impacts. CEQA's principal mandate requires mitigation, and ignoring that requirement violates that central mandate and the legislative purpose of CEQA. (Pub. Res. Code §§21000, 21002, 21002.1, 21081, etc.)

The LOS methodology, on the other hand, accurately analyzes the significant impacts of development and other projects by setting out existing traffic conditions at specific locations, and comparing those conditions with the additional impacts of the project in real, quantified terms of delay and street capacity. An accurate analysis of transportation impacts under CEQA must therefore include LOS.

6. Level of Service Methodology Must Be Used In Conjunction With Any Other Methodology To Assure Accurate Analysis of Transportation Impacts.

The revisions of CEQA proposed under SB 743 do not allow City's strategy. For example, Public Resources Code §21099(b) states: 

(1) "The Office of Planning and Research shall prepare, develop, and transmit to the Secretary of the Natural Resources Agency for certification and adoption proposed revisions to the [CEQA Guidelines] establishing the criteria for determining the significance of transportation impacts of projects within transit priority areas. Those criteria shall promote the reduction of greenhouse gas emissions, the development of multimodal transportation networks, and a diversity of land uses. In developing the criteria, the office shall recommend potential metrics to measure transportation impacts that may include, but are not limited to, vehicle miles traveled, vehicle miles traveled per capita, automobile trip generation rates, or automobile trips generated. The office may also establish criteria for models used to analyze transportation impacts to ensure the models are accurate, reliable, and consistent with the intent of this section." (emphasis added.)

(2) "Upon certification of the guidelines by the Secretary of the Natural Resources Agency pursuant to this section, automobile delay, as described solely by level of service or similar measure of vehicular capacity or traffic congestion shall not be considered a significant impact on the environment pursuant to this division, except in locations specifically identified in the guidelines, if any."

(3) "This subdivision does not relieve a public agency of the requirement to analyze a projects potentially significant transportation impacts related to air quality, noise, safety, or any other impact associated with transportation. The methodology established by these guidelines shall not create a presumption that a project will not result in significant impacts related to air quality, noise, safety, or any other impact associated with transportation."

CEQA's statutory revision at §21099 on which City relies does not excuse City from the accurate analysis of transportation impacts and indeed reinforces CEQA's requirements to analyze and mitigate transportation impacts, including the impacts of congestion on air quality, noise, safety, "or any other impact associated with transportation." City's scheme thus plainly fails to comply with CEQA's provision that it claims supports its strategy. (See also, e.g., Cal. Gov. Code §11342.2)

Further, even if §21099 does not consider "automobile delay, as described solely by level of service or similar measure of vehicular capacity or traffic congestion" a significant impact "except in locations specifically identified in the guidelines," that provision does not per se require invalidation of LOS methodology to measure delay of all modes of transportation including automobile delay. Since automobile delay and congestion necessarily impact roadway capacity for every form of transportation including public transit, LOS must be used, along with other criteria for accurate analysis of impacts.

7. City's Transportation Sustainability Fee, as implemented by the MTA's TDM Program's "goal" excludes the vast majority of travelers who travel by car and fails to mitigate significant impacts.

Under both CEQA and NEPA, public agencies have a duty to avoid or minimize environmental damage, not cause more of it. (e.g., Guidelines, §15021.) 

Here, "[f]ee revenues would be collected by the Planning Department and then routed to the SFMTA to be allocated through an interagency process that will be outlined in a Memorandum of Understanding, currently being developed." (ES, p.12) The proposed "key" expenditures are described as "Transit capital and operational investments (Central Subway, Mui Forward, Bus Rapid Transit Projects, etc.)"; Bicycle infrastructure (protected lanes, parking, etc.)"; and "Pedestrian safety (Vision Zero, Walk First, etc.)." (ES, p.2)

Under the proposal adopted by the MTA Board on September 1, 2015, City's "Transportation Sustainability Fee," is shifted to the "Transportation Demand Management Program ["TDM"], proposes allowing developers to choose from a menu of "TDM options" when "designing their projects." (See, 9/1/15 MTA Board Packet, p.5) Someone not identified would then quantify the "efficacy or effectiveness of some these options at different locations in San Francisco." (Id.) Someone also not identified would then determine "that developers are implementing the measure they committed to and the program is effective." (Id.)

The "menu options" would include such ineffectual measures as "Subsidize Transit Passes," Subsidize Bike Share or Car Share Membership," "Hire TDM Coordinator," "Shuttle or Vanpool Service," Reduce On-site Parking Supply," "Provide Delivery Service," "Sponsor Bike-share Stations," "Commute Reduction Programs," and "Charge for Parking/Parking Pricing." (9/1/15 MTA Board Packet, p.5) The Packet supporting this Project admits that the city has not is still "working on the technical details of the program, including quantifying the efficacy of some of the above-listed measures." (Id.) Without that quantification and without those technical details about the "efficacy" of all of the proposed "measures," the fee violates both CEQA and NEPA. Even if those measures could be considered mitigation of anything, City may not use alleged mitigation measures to exempt itself from CEQA. Moreover, the measures described for mitigating significant impacts must be effective and enforceable, with those features supported by substantial evidence. Further, City may not selectively allocate public funding for "bicycle" and other projects that benefit only a small percentage of travelers using existing infrastructure, since such funding would not satisfy CEQA, NEPA, or the constitutions of California and United States.

As noted in previous Comment, the proposed uses of the TSP fees are unconstitutional, since they are not rationally related to the impacts generated by development on transportation, and are disproportionate to those impacts.

No mitigation is proposed for impacts on the mode of travel chosen by the vast majority of residents, commuters, and travelers in San Francisco, the automobile. Instead, the fee proposes actions that degrade motor vehicle transportation. Nor do the fees bear any rational relation to mitigating air quality impacts, since they propose instead to increase congestion by punishing the vast majority of travelers who use cars, thus also increasing adverse air quality and GHG impacts. 

8. The City Has Failed To Provide Public Notice And The Opportunity To Be Heard.

This commenter has requested notice of all proceedings on this Project, but received no "notice" of this hearing, which violates CEQA and the Brown Act. The Commission must therefore continue this hearing to provide adequate public notice. City's alleged "outreach" to interested entities does not include the essential notice to the public, and since you have not even given such notice on request, you may not lawfully consider this matter today.

The Commission's duty is to serve the public includes all of the public, including the majority of travelers who choose to use automobiles, not just small, special interest groups like bicyclists who comprise less than four percent of San Francisco travelers. The resolution before you is a Project of regional and statewide importance, since it will significantly affect traffic throughout the City and the region. 

CEQA is not satisfied by VMT, since that metric does not accurately measure impacts on the environment, is based on speculation, and ignores the significant impacts on the vast majority of travelers and residents. The VMT metric avoids dealing with the real impacts of increased congestion due to irresponsible, unregulated development. Those significant impacts on traffic congestion, wait times, air quality, and parking availability affect not only car drivers but public transportation systems. The Guidelines, and local methodology for measuring impacts must conform with CEQA, not avoid its mandate.

For the foregoing reasons, the Commission should reject the proposed legislation before you.