Public comment on the Van Ness BRT project

FROM: Mary Miles, Attorney at Law

for Coalition for Adequate Review

San Francisco, CA 94102

TO: Darryl Honda, President, Members of the San Francisco Board of Appeals

1650 Mission Street, Suite 304

San Francisco, CA 94103

boardofappeals@sfgov.org

DATE: June 16, 2016

RE: Appeal No. 16-057: Delbridge v. DPW-BUF

Hearing Date: June 22, 2016

PUBLIC COMMENT IN SUPPORT OF APPEAL

This is public comment in support of Appeal No. 16-057, Delbridge v. DPW-BUF ("Appeal"), appealing the March 28, 2016 Department of Public Works Order No: 184735 ("DPW Order"). Please assure that each Board member receives a copy of this Comment and attachments, and that copies are placed in the appropriate record files on the Appeal.

With its March 28, 2016 Order, the DPW proposes to immediately remove 88 mature trees, comprising nearly all of the mature trees in the median strip of Van Ness Avenue/Highway 101 from Lombard to Mission Street, to immediately remove four sidewalk trees, and at some unstated time to remove 106 more sidewalk trees on Van Ness Avenue. DPW's rationale for clear-cutting Van Ness Avenue is to facilitate the construction of the Van Ness Bus Rapid Transit ("VNBRT") Project in the center of Van Ness Avenue.

In addition to creating permanent congestion by eliminating traffic lanes, turning capacity, and parking on Van Ness Avenue/Highway 101, the Project would demolish the 100-year-old historic lamp posts and cut the mature trees that have given the grand Avenue beauty, dignity, and endearing character enjoyed by generations of travelers. DPW and the San Francisco Municipal Transportation Agency ("MTA") rejected the curbside alternative to the VNBRT Project, which would accomplish the goals of the VNBRT without destroying the trees and demolishing the historic lampposts.

This Board should sustain the Appeal, set aside the DPW Order, and require subsequent or supplemental environmental review of the Project to comply with the California Environmental Quality Act (CEQA [Pub. Res. Code §§21000 et seq.]) and other applicable statutes.

The VNBRT Project would permanently remove two traffic lanes, nearly all existing parking, left turn pockets, the historic 100-year-old lampposts, and the mature trees to install a red asphalt expanse in the middle of Van Ness Avenue for the exclusive use of two Muni lines, the 47 and the 49. The Project will have permanent significant, direct and indirect negative impacts on traffic, turning, parking, loading, lateral transit lines, air quality, historic resources, visual and aesthetic resources, biological resources, public safety, and other impacts, which are described in detail in the attached Public Comment to San Francisco County Transportation Authority (SFCTA) et al., September 17, 2013); and Public Comment to the San Francisco Historic Preservation Commission, May 18, 2016, incorporated by reference to this comment. This Board should also consider the many public comments submitted in opposition to the VNBRT Project since the release of environmental documents by SFCTA, the Project sponsor.

Dismissing substantial public dissent, the SFCTA, MTA, and other City agencies, have acted as the Project sponsors, boosters, unelected decisionmakers, and, importantly, as the beneficiaries of hundreds of millions of public dollars to fund this destructive Project. SFCTA and MTA, along with DPW, now propose to implement the huge, expensive VNBRT Project with no public accountability or oversight. As described below, the Project costs to the public and taxpayers would likely exceed a half billion dollars, with construction costs alone now estimated at over $300 million.

The public has had no say before any elected decisionmaking body on the VNBRT Project nor any opportunity to vote on it. Nevertheless, as acknowledged by DPW, SFCTA, and MTA, there is broad dissent and objection to the Project, and particularly to the proposed tree-cutting. (See, e.g., DPW Order, p. 3 [21 speakers spoke against removing the trees at its August 24, 2015 hearing, plus several written comments]; and, e.g., VNBRT Final Environmental Impact Statement/Report ["FEIS/FEIR"], public comments.) DPW and other City agencies have ignored the overwhelming public dissent to the VNBRT Project and the tree-cutting.

The following objections (not all-inclusive) to the DPW Order and the Project are in addition to those already made:

1. DPW's Proposed Tree Removal Was Not Covered in the Final EIS/EIR on the Project

The DPW Order makes several false and unsupported statements, including that the SFCTA and SFMTA completed an EIS/EIR on MTA's center BRT lane design. (Order, pp. 2, 4.) In fact, the the public had no opportunity to comment on MTA's "Locally Preferred Alternative" ("LPA"), consisting of the center BRT design, which was not introduced until after the EIS/EIR was circulated. MTA's LPA differed from the analyzed alternatives in many important ways and had more significant impacts and far more severe impacts. (See detailed analysis in attached September 17, 2013 Public Comment to the SFCTA.)

In fact, the current version of the Project is not described in the Draft EIS/EIR (DEIS/DEIR) that was distributed for public comment. With MTA's LPA, the SFCTA/MTA bypassed public review in plain violation of CEQA's mandate of informed public participation in the environmental review process. (e.g., Communities for a Better Environment v. City of Richmond ["CBE-Richmond"] (2010) 184 Cal.App.4th 70, 80; Laurel Heights Improvement Assn. v. Regents of University of California ["Laurel Heights I"] (1988) 47 Cal.3d 376, 404.) The choice of the LPA is relevant here, because DPW's Order states that the LPA (center/median BRT) is the only reason for removing the 90 median trees and more than 100 sidewalk trees on Van Ness Avenue. (DPW Order, p. 2)

The Draft EIS/EIR did not contain any description of the MTA's LPA "alternative." (See attached EXHIBIT A [Public Comment, 9/17/13].) In describing the "center lane" and curb lane alternatives, the Draft EIS/EIR depicted the trees as remaining in the median of Van Ness Avenue, and falsely stated that no parking would be removed with the "center lane" alternatives. (See EXHIBIT A) In fact, the LPA, contrary to statements in the Draft EIS/EIR, would remove nearly all of the parking on Van Ness Avenue, more spaces than any other alternative, as well as cutting the median and sidewalk trees and eliminating the historic lamp posts. (Id.; FEIS/FEIR, pp. 3-119, 3-123)

The SFCTA/MTA then released another document, the "Final Environmental Impact Statement/Final Environmental Impact Report, July, 2013" (FEIS/FEIR), which received no public circulation and which again contains misleading depictions of the LPA, showing fully grown trees in the median and on the sidewalks of Van Ness Avenue. (FEIS/FEIR, e.g., pp. s-7, 2-9, Figure 2-2; 10-27) 

The FEIS/FEIR admitted that the LPA would also remove more parking spaces than any other "alternative," but failed to state the reality shown in later documents that it would remove nearly all of the parking on both sides of Van Ness Avenue, claiming without support that San Francisco does not consider removing parking to be a significant impact. (FEIS/FEIR, p.3-119, 3-123) 

The failure to accurately state the Project description misleads the public in violation of CEQA. (CBE-Richmond, supra, 184 Cal.App.4th at pp.82-85; San Joaquin Raptor Rescue Center v. County of Merced ["Raptor"] (2007) 149 Cal.App.4th 645, 655-656) Here, both the Draft and Final environmental documents misled the public, showing mature trees in the Van Ness median and on the sidewalks, including in the depictions of the LPA. 

2. The FEIS/FEIR Contradicts DPW's Order and the Addendum 

The FEIS/FEIR contains no adequate analysis of the proposed impacts of the tree-removal proposed here. In fact, to the extent that the LPA is included at all, it shows no change in the sidewalk trees, and shows mature trees in the median, misleading the public and decisionmakers on the extent of the damage. (FEIS/FEIR, e.g., pp. pp. s-7, 2-9, Figure 2-2) 

In fact, the FEIS/FEIR explicitly states, "The center-lane configuration alternatives..., including the LPA would not affect existing sidewalk trees." (FEIS/FEIR, p. 4.4-37 [emphasis added]) 

The FEIS/FEIR notes: 

"Changes to the existing landscaped median and tree canopy are one of the most noteworthy impacts on the visual setting at each key viewpoint presented in Section 4.4.3.1. As described...the landscaped medians and tree plantings along Van Ness Avenue contribute to the visual quality of the corridor, and they are one of the most important visual features in the corridor. All viewer groups, including sensitive viewer groups (i.e., residents, commuters, and tourists) would be sensitive to changes in the character and scenic quality of landscaping and trees in the corridor. Many comments regarding concern for tree loss were submitted by agencies and the public during circulation of the Draft EIS/EIR." (FEIS/FEIR, pp. 4.4-35-36) 

In direct contradiction to the description in the FEIS/FEIR, the DPW Order states that the LPA will remove more than 100 mature sidewalk trees in addition to the 90 trees in the median described in the FEIS/FEIR. (cf. FEIS/FEIR, pp. 4.4-4, and 7-29, stating that no sidewalk trees would be removed; and DPW Order, p.1, stating that 106 sidewalk trees will be removed.) The FEIS/FEIR plainly states that 90 median trees will be killed and removed, and that there will be a net loss of at least 23 mature and healthy trees, "which is approximately 82 percent of existing healthy and mature median trees in the corridor," resulting in a "notable, adverse change in the visual quality of the project corridor." (FEIS/FEIR, p. 4-4.44) The entire proposed tree-removal would be unnecessary with the curbside BRT alternative in the FEIS/FEIR, which would accomplish the goals of the Project proponents, or with the no-Project alternative, which would accomplish most of the Project goals. 

The LPA (center BRT), unlike the side lane alternative (Alternative 2 in the FEIS/FEIR), also requires removing the historic street lamps, and increased public cost of replacing the entire sewer line on Van Ness Avenue over the cost of the less damaging Alternative 2. (SFCTA, CEQA "Findings," September 10, 2013, p. 49)

Where, as here, a public agency rejects alternatives that would not cause the same or as severe significant impacts as those proposed by the DPW Order, CEQA requires a subsequent EIR ["SEIR"] or a "supplemental" EIR (14 Cal. Code Regs. [CEQA "Guidelines"] §15162(a)(3)(C).) Instead of producing the required SEIR, SFCTA created an Addendum to the FEIS/FEIR that plainly contradicts the conclusions, Project description, and factual data in the FEIS/FEIR. 

3. The Shifting and Contradictory Project Description Is Inaccurate, Misleading, and Deprives the Public of the Opportunity to Participate in Informed Decisionmaking

There is no accurate description of the location of the existing trees proposed for removal in either the FEIS/FEIR or the Addendum. Such data is necessary for informed decisionmaking and informed public participation in the decisionmaking process. 

As noted in the Appellant's Brief, the San Francisco Urban Forestry Ordinance requires specific information to determine whether each tree is "significant" for DPW purposes and for analyzing the impacts of removing such trees. (See Pub.Works Code §810A; Appellant's Brief, Appeal #16-057, May 2, 2016, pp.5-7.) Section 810A defines significant trees as those that meet "at least one of the following criteria: (a) a diameter at breast height (DBH) in excess of twelve (12) inches, (b) a height in excess of twenty (20) feet, or (c) a canopy in excess of fifteen (15) feet." (SF Pub.Works Code §810A(a).) The DPW's Order fails to disclose that data, precluding the required "significant" designation, and fails to describe the location, species, height, trunk size, or age of the individual median or sidewalk trees. City's Ordinance 17-06 amending Public Works Code to include §810A states that its "public purpose" is: "To recognize that trees are an essential part of the City's aesthetic environment and that the removal of important trees should be addressed through appropriate public participation and dialogue, including the California Environmental quality Act." (Board of Supervisors' Ordinance 17-06, passed 12/19/05.) Here, the public's voice has been entirely disregarded by both DPW and the Project sponsors.

Local standards can also provide guidance to determine a threshold of significance for ascertaining significant impacts under CEQA. (Lotus v. Dept. of Transportation ["Lotus"] (2014) 223 Cal.App.4th 645, 654-655, fn. 7) In Lotus, the court held an EIR inadequate because the lack of information on significance criteria did not "enable[] the reader to evaluate the significance" of impacts of road construction on nearby redwood trees. (Lotus, supra, 223 Cal.App.4th at p. 645) In Lotus, as with the Addendum here, the environmental document "fails to identify any standard of significance, much less to apply one to an analysis of predictable impacts from the project." (Id. at p. 655) As in Lotus, approving the Project without that critical information would be an abuse of discretion.

Further, the DPW Order falsely characterizes the Project as tree "replacement." The VNBRT-LPA is a massive, controversial and highly problematic transit Project, with significant transportation and other impacts, including those caused by choosing an "alternative" that unnecessarily requires removing the mature trees in both the median and on the sidewalks---trees that now give Van Ness Avenue beauty and character. 

4. The DPW Order Fails to Provide Adequate Baseline Information or Adequate or Effective Mitigation 

The Order's generalized description of existing trees in the Project area fails to provide the public and decisionmakers the necessary baseline information for analyzing impacts and proposing mitigation measures for removal of the trees, depriving the public and this Board of the information necessary for informed decisionmaking. (Raptor, supra, 149 Cal.App.4th at p.659) 

DPW's Order provides no information on the location, size, species, or anticipated "mature" date of any "replantings." The DPW Order does not disclose the "landscape design plan" proposed as a "mitigation measure" for public review. 

These flaws underscore the need for an SEIR to analyze the additional and more severe impacts of the Project as proposed by the DPW Order, and because the SFCTA improperly rejected Alternative 2, which it acknowledged was the environmentally superior alternative that would not have the same or as severe impacts. (SFCTA CEQA Findings, September 10, 2013, p. 52) 

5. Using Proposed Mitigation Measures to Reach a "No Impacts" Conclusion Violates CEQA 

Both the DPW Order and the Addendum improperly conclude that the "modified Project would not cause new significant impacts not identified in the FEIR; nor would the modified project, in combination with the proposed removal and replacement of additional trees through Public Works' Van Ness Avenue Streetscape Improvement Project, result in new significant cumulative impacts." (DPW Order, p. 5) That statement is factually false, since the "modified project," contrary to the explicit statements in the FEIS/FEIR, will remove more than 100 sidewalk trees and the 88 median trees, which would clearly cause more significant impacts and impacts of greater severity than those identified in the FEIS/FEIR. 

As noted, it is false and misleading to describe the Project here as "removal and replacement" of hundreds of trees. The Project at issue is the VNBRT, and the agencies, by rejecting the less destructive alternatives to the LPA make the tree removal necessary only for the center-lane LPA-BRT Project. (DPW Order, p.2) In fact, it is only unreasonable rejection by SFCTA and MTA of the less destructive curbside Alternative 2 that requires removing hundreds of trees and the historic lamp posts on Van Ness Avenue.(Guidelines, §15162(a)(3)(C).) Neither the Order nor the Addendum analyze or support the infeasibility of less destructive alternatives as required. 

Beyond the "replacement"-as-Project falsehood, the DPW Order and Addendum illegally claim that the proposed mitigation, consisting of "replacing" the existing trees with immature trees of different species in different locations than the existing trees), can substitute for an analysis of the significant impacts of removing the trees. The analysis of impacts is independent of planned "mitigation" measures. (Lotus, supra, 223 Cal.App.4th at p. 656) "By compressing the analysis of impacts and mitigation measures into a single issue, the EIR disregards the requirements of CEQA." (Id.) The analysis of impacts must occur before the proposal of mitigation measures. (Id.) By disingenuously merging the analysis of impacts of the tree removal with a proposed mitigation measure of replacing the trees it will cut, DPW violates CEQA. (Id.)

6. The Substantial Changes Proposed by the DPW Order Require a Subsequent EIR to Comply with CEQA

The DPW Order claims the March 4, 2016 Addendum justifies removing more than 100 mature sidewalk trees and 88 mature median trees. (DPW Order, p. 5) Even if the FEIS/FEIR contained an adequate analysis of the impacts of cutting 90 mature trees in the median, which it does not, DPW's proposed tree-cutting requires an SEIR or at minimum a supplement to the FEIS/FEIR. (Guidelines §§15162, 15163) 

Under CEQA, an SEIR is required where a Project is changed in any of three ways: 1) where there are substantial changes in the Project requiring major revisions of the previous EIR due to "new significant environmental effects or a substantial increase in the severity of previously identified significant effects"; 2) where there are substantial changes in the circumstances under which the project is undertaken requiring major revisions of the previous EIR due to "new significant environmental effects or a substantial increase in the severity of previously identified significant effects"; or 3) where "[n]ew information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified" showing that the project will have one or more significant effects not discussed in the previous EIR," or that significant effects "previously examined will be substantially more severe than shown in the previous EIR," or that "[m]itigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative." (Guidelines §15162(a).)

The DPW Order directly contradicts the FEIS/FEIR by proposing cutting more than 100 mature sidewalk trees and 88 median trees to accommodate the VNBRT-LPA Project. The FEIS/FEIR explicitly states that no sidewalk trees will be cut or affected by the VNBRT Project. (FEIS/FEIR, p. 4.4-37; 7-29) The DPW Order now states that 106 street trees must be removed for the VNBRT Project "with center BRT lanes." (DPW Order, pp. 1, 2; Guidelines §15162(a).) The added tree removals are new information that could not have been known or considered in the FEIS/FEIR, and that contradict the information in that document. The significant impacts already acknowledged by the FEIS/FEIR from removing the median trees would now include more impacts and more severe impacts than described in the FEIS/FEIR. 

The currently canopied Van Ness Avenue/Highway 101 would become a wide, barren asphalt expanse with a garish red median up to 50 feet wide for buses to pass one another on the right. Travelers, residents, and pedestrians would experience increased traffic congestion from eliminating two traffic lanes, hundreds of parking spaces, and all but one left turn pocket, making the entire Project area a forbidding entry to the City. Pedestrians would have no buffer from the traffic, because the parking lane and the sidewalk trees would be removed. The additional visual impacts alone require an SEIR, which must also properly analyze the biological, climate, and ecological impacts of the deforestation of Van Ness Avenue for the unnecessary center lane VNBRT-LPA Project. (Guidelines §15162(a).) 

Further, the public and appellants could not have known of DPW's additional sidewalk tree-cutting, particularly since the FEIS/FEIR states that the sidewalk trees would not be cut. (FEIS/FEIR, pp. 4.4-37, 7-29) The FEIS/FEIR did not discuss the impacts of cutting the sidewalk trees, which alone requires an SEIR, since the impacts examined in the FEIS/FEIR will clearly be more numerous and severe. (Guidelines §15162(a)(3).) 

7. An SEIR Is Required, Because the SFCTA and MTA Rejected Alternatives That Would Not Require the Tree Removals

CEQA requires an SEIR here, because the alternatives previously found not to be feasible, including the curbside BRT alternative (Alternative 2 in the FEIS/FEIR) or the No Project Alternative (Alternative 1) are in fact feasible and would substantially reduce one or more significant impacts of the center-BRT alternative. (Guidelines §15162(a)(3)(C).) That fact is unaddressed in the Addendum, which again misleads by pretending those alternatives do not exist and misstating the contradictory information in the FEIS/FEIR. Approving the DPW Order under these circumstances is an abuse of discretion and a failure to proceed in compliance with CEQA.

8. The Addendum's false and contradictory statements Highlight the Need for an SEIR

The false and contradictory statements in the Addendum underscore why an SEIR is required. (Raptor, supra, 149 Cal.App.4th at p. 655-656)

Addendum, p. 5: "The Final EIS/EIR concludes that the Project would alter the visual setting with the introduction of BRT features and the replacement OCS support pole/streetlight; however, these changes would not substantially change or impact the character of the Van Ness Avenue corridor because the proposed BRT features are consistent with the urban, contemporary visual setting of Van ness Avenue, and the introduced features would not substantially degrade the surrounding visual environment of the corridor." 

FEIS/FEIR, p. 4.4-35: "Changes to the existing landscaped median and tree canopy are one of the most noteworthy impacts on the visual setting at each key viewpoint presented in Section 4.4.3.1. As described in Section 4.4.2.4, the landscaped medians and tree plantings along Van Ness Avenue contribute to the visual quality of the corridor, and they are one of the most important visual features in the corridor."

FEIS/FEIR, p. 4-4.13: Although the 100-year-old street lamps lining Van Ness Avenue "are not eligible for listing in the NRHP and CRHR, they are designated as California Office of Historic Preservation (OHP) Historical Resource Status Code 61, which indicates that they may warrant special consideration in local planning, much like the Significant and Contributory Buildings identified by the City in the Van Ness Area Plan." 

FEIS/FEIR, p. 4.4-34: "Replacement of the OCS support pole/streetlight network is one of the most noteworthy change to the visual context at each key viewpoint presented in Section 4.4.3.1. Impacts resulting from changes to the OCS support poles/streetlights would be experienced by all viewer groups, including sensitive viewer groups (i.e., residents, commuters, and tourists)."

Addendum, p. 5: "The Final EIS/EIR further concludes that the Project would improve the feel of the Van Ness Avenue corridor with regard to the pedestrian environment by improving sidewalk lighting, installing curb bulbs, and generally widening the median to reduce crossing distances at intersections." 

FEIS/FEIR, p. 10-30: The Project increases walking distance to bus stops, removes the buffer provided by parking on several blocks, and requires pedestrians to walk to an unshaded, narrow median strip to board a Muni bus. The Project increases the distance between stops to 1,150 feet, exceeding the Muni service standard of 800 to 1,000 feet between stops. (FEIS/FEIR, pp. 3-21, 10-31) 

Addendum, p. 6: "The Final EIS/EIR concludes that since the Project area has no special-status biological resources or protected habitats that could be impacted by the Project, no native plant assemblage or biotic community would be disturbed during operation of the Project. Nonetheless, median and sidewalk vegetation along Van Ness Avenue provides habitat for nesting birds, which are protected by the Migratory Bird Treaty Act (MBTA). Operation and construction of the Project would not increase disturbance to migratory birds and active bird nests during the nesting season."

FEIS/FEIR, p. 4-13.4, 4-15:32-33: "[M]edian and sidewalk vegetation along Van Ness Avenue provides habitat for nesting birds, which are protected by the MBTA. Construction of the proposed…LPA…could disturb migratory birds and active bird nests during the nesting season, causing nest abandonment and death of young or loss of reproductive potential at active bird nests, resulting in adverse impacts. Mitigation described…in Section 4-15, 11.2 is required to avoid or minimize disturbance to any active bird nests."

9. The DPW Order's Claim of Necessity Is False, Since Less Destructive Alternatives Are Feasible and Available

The DPW Order tries to justify removing the trees by claiming "the center BRT lanes with right-side loading and dual medians for Van Ness Avenue meant the need to replace existing Van Ness Avenue trees." (Order, pp. 2, 5.) In fact, there is no "need" to remove the existing trees, because there is no need for a center BRT to accomplish the Project's goals. Those goals would be accomplished by either the curbside alternative (Alternative 2) or the no-Project alternative. SFCTA admitted that Alternative 2, the side BRT, is the environmentally superior "build" alternative but rejected it anyway. (SFCTA CEQA Findings, p. 52) 

For example, Project goals and "objectives" to "improve transit reliability, speed, connectivity, and comfort" (Addendum, p. 1) would be achieved by the curbside alternative, by other measures that MTA has already taken, including eliminating nearly half the bus stops on Van Ness Avenue, and by buying new buses and amenities, which are not included in the Project in any event. The goal of improving "pedestrian comfort, amenities, and safety" (Addendum, p. 1) would be more readily achieved by the curbside alternative, which would keep the stops on the treed sidewalk instead of forcing pedestrians to wait for buses in a narrow, treeless bus stop in the middle of Van Ness Avenue.

The goal of allegedly "enhanc[ing] the urban design and identity of Van Ness Avenue" (Addendum, p.1) is a perverse fiction, given the LPA's proposed removal of the mature trees and the beautiful, historic lamp posts--measures that are not necessary under the feasible curbside alternative. The goal of creating "a more livable and attractive street for local residential, commercial, and other activities" (Addendum, p. 1) is another fiction, particularly given the inhospitable desertification of Van Ness Avenue and removing the historic artifacts and trees that give it character and dignity. That character would be preserved by the curbside or no-project alternatives. The final goal, "to [a]ccommodate safe multimodal circulation and access within the corridor" (Addendum, p. 1) is plainly false, since the LPA proposes a highway and street that is inhospitable and congested for the vast majority of travelers who travel in cars, to pedestrians, and to bus riders who will have to walk twice as far to reach a bus stop. In any event, the curbside alternative offers the same benefits without the significant impacts from removing the trees and the lamp posts. 

The DPW tries to justify its Order by referring to MTA proceedings on its LPA, which proposes center bus lanes instead of the less destructive side lane alternative. (DPW Order, pp.1-2) As noted, the public was excluded from the LPA decision, in violation of CEQA. (Laurel Heights I, supra, 47 Cal.App.3d at p.405) Since the LPA-Project will permanently remove nearly all of the parking on Van Ness Avenue, that presents no justification for the more destructive, impactful, and expensive center lane BRT. For example, the side-BRT alternative would not require removing the trees and the entire beautiful landscaped median, the historic lampposts, or the traffic lanes and left turn lanes. 

Other claims that DPW's proposed actions are "necessary" to meet MTA's dubious "goals" that were self-imposed by choosing the center-BRT LPA are similarly false. For example, the unsupported claim that the center-BRT will improve "bus travel times by 32%" (DPW Order, p. 2) is misleading, since the existing 5 mph speed of Muni lines 47 and 49 would "improve" to less than 7 mph, which will come at the expense of creating traffic congestion on Van Ness Avenue and streets throughout the area, as admitted in the FEIS/FEIR.[1] Moreover, the same "improvement" would be realized by bus lanes on the sides instead of the center BRT, without destroying the trees, the lampposts, and the historic character of the avenue.

DPW also claims with no substantiation that the Project would "increase reliability by 50%, increase boardings by 35% for a total of 60,000 passengers, and save up to 30% of the daily route operating costs." In fact, Muni's reliability is not contingent on the center-BRT. Even with the large influx of tax dollars to MTA, Muni's performance has not improved and remains out of compliance with the City's Charter. [2] In any event, the same "reliability" would be realized without the center-BRT, and without the LPA's dangerous feature of buses passing one another on the right. (FEIS/FEIR, p. 10-5) 

There is no data substantiating DPW's dubious claim that boardings would increase on Muni lines 47 and 49 with the center BRT to 60,000 per day. (DPW Order, p. 2) The FEIS/FEIR documented present daily boardings on both lines at 16,000 per day (FEIS/FEIR, p. S-2), speculating without support that when the Project created increased traffic congestion on Van Ness Avenue/Highway 101 and surrounding streets, the public would abandon cars and instead use Muni or bicycles to reach their destinations. (See Exhibit A, Public Comment, 9/17/13) SFCTA later admitted its claim was pure speculation. (Id.) 

The alleged reduction in "route operating costs" is also unsupported, and would occur without the VNBRT, since SFMTA has already resolved to permanently eliminate many of the bus stops on Van Ness Avenue and to initiate "proof of payment," "traffic signal optimization," and "Transit Signal Priority" regardless of the Project in the center of Van Ness Avenue. (Addendum, pp.1-2) 

In fact, at an unnoticed "Engineering Hearing" on May 20, 2016, MTA announced that it would permanently eliminate nearly half the bus stops on Van Ness Avenue by June 4, 2016. (MTA Order, May 20, 2016) The remaining bus stops will be nearly a quarter mile apart, significantly affecting accessibility by seniors and the disabled. Of course, eliminating bus stops will speed up buses where they don't have to stop so often to pick up those pesky passengers. However, the impacts of eliminating the bus stops have not been analyzed or mitigated. Besides, eliminating the bus stops to speed Muni lines 47 and 49 has now already been implemented without the destructive center lane VNBRT.

No benefits to pedestrians would occur either from the center lane BRT or from cutting the trees, since pedestrians walking to bus stops would have to walk much farther. Further, placing the bus stops in the center of the busy highway would require walking and waiting in the barren red-painted asphalt expanse in the middle of the Van Ness Avenue, instead of the existing treed sidewalk bus stop areas. The safety of the center BRT bus stops has not been analyzed. 

The claim that trees and lamp posts must be removed to implement the center BRT design is only based on the unsupported assumption that the center BRT is necessary at all. It is not, since the same Project "goals" of making Muni lines 47 and 49 more competitive with vehicle traffic would be achieved without the center BRT. In fact, those goals would be achieved with the much less destructive side BRT or with no VNBRT Project. 

DPW's claim of necessity for its Order therefore vanishes after even superficial scrutiny of the facts.

10. The DPW Order's Claim of No Substantial Project Changes Is Unsupported and False

Contrary to the DPW Order, (DPW Order, p. 4), the "modified project" would cause significant impacts not identified in the VNBRT EIS/EIR. As noted, MTA's LPA center BRT with tree and lamp post removal was devised by SFMTA after the close of public comment on the DEIS/DEIR depriving the public of the opportunity to participate in the decision-making process as required by CEQA. (Laurel Heights I, supra, 47 Cal.3d at pp. 394, 405; Ventura Foothill Neighbors v. County of Ventura ["Ventura Neighbors"] (2014) 232 Cal.App.4th 429, 431) 

As discussed above, the LPA center BRT with tree and lamp post removal ("modified project") will have more severe impacts than identified and described in the FEIS/FEIR and requires a publicly circulated SEIR to analyze the impacts of the "modified Project" and propose effective mitigation. (See 14 Cal.Code Regs. (CEQA "Guidelines") §§15162, 15163, 15164; Pub. Res. Code §21166; e.g., Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 143; Laurel Heights I, supra, 47 Cal.3d at p. 394; Ventura Neighbors, supra, 232 Cal.App.4th 429, 431). 

CEQA requires a publicly circulated subsequent or supplemental EIR, because the modifications under DPW's Order will increase the severity of impacts and introduce new impacts with no adequate mitigation, and because the increased destruction of the existing landscape of Van Ness Avenue could not have been known at the time the EIR was circulated for public comment. (Guidelines §15162, 15164) In Ventura Neighbors, supra, 232 Cal.App.4th at p.434, 436, the court held that issuing an addendum was an abuse of discretion, because the increased impacts of the project required an SEIR. Moreover, an SEIR is plainly required here, because the SFCTA and MTA rejected an alternative that would have fewer impacts and less severe impacts than those now proposed in DPW's Order. (Guidelines, §15162(a).)

11. Neither the EIR Nor The Addendum Addresses, Analyzes, or Mitigates DPW's Plan to Remove 106 More Trees in the DPW Order

SFCTA's Addendum plays a deceptive shell game by claiming that the modified Project would only affect four additional trees. (Addendum, p. 2.) However, the DPW Order admits that 106 existing mature sidewalk trees, in addition to the 88 mature median trees, would be permanently eliminated on Van Ness Avenue. (DPW Order, p. 1) 

The cutting of 106 additional trees pursuant to the DPW Order has received no environmental review, either in the FEIS/FEIR or in the Addendum. Indeed, as noted above, the FEIS/FEIR plainly states that no sidewalk trees will be removed. (FEIS/FEIR, pp. 4.4-37, 7-29) Neither the DPW Order nor the Addendum describes the location, specie(s), age, or character of the 106 additional trees, analyzes the impacts of removing these trees, or proposes any mitigation for their removal. The significant aesthetic, biological, and human impacts of removing the 88 median trees and the 106 sidewalk trees requires an SEIR to comply with CEQA. (Guidelines, §15162, 15164; Pub.Res.Code §21166) 

Further, neither the DPW Order nor the Addendum proposes any enforceable, effective mitigation measures for removing the 88 median and 106 additional trees in plain violation of CEQA. (Pub. Res. Code §§21002; 21081(a).) 

The lack of analysis and the failure to require enforceable mitigation of the impacts of the Project make the DPW Order and any approval of the Project an abuse of discretion and a failure to proceed according to CEQA. 

Although the Addendum claims that a "project landscape and design plan will require review in the street ROW," no such "design plan" has been disclosed for public review. (Laurel Heights I, supra, 47 Cal.3d at pp. 394, 405.) As noted, the failure to inform the public of the Project's impacts and propose mitigation is a failure to comply with CEQA. (Id.) 

12. The Project Is a Waste of Public Money By Unaccountable Public Agencies

Neither MTA nor any other public agency has accurately disclosed the total public cost of the VNBRT Project, instead releasing variations and drastic understatements that fail to include any accounting of those costs or the source of the public funding. There is no accounting of the agency costs of the environmental review, "design," or any other agency expense, now likely in the millions with a staff of 40 "engineers" and public relations flacks in MTA alone, plus many more in SFCTA. 

The FEIS/FEIR claims that the cost of constructing the VNBRT Project LPA would be $126 million. (FEIS/FEIR, p. 10-23) On July 7, 2015, the MTA estimated $159 million for construction alone, and a total cost of $260 million for the VNBRT-LPA Project. (MTA Board Staff Report, July 7, 2015) On May 10, 2016, MTA's contractor produced a GMP of $312,698,230, for the construction alone, doubling the estimated construction cost in less than a year without any construction having taken place. (See Exhibit C, Walsh Construction GMP, May 10, 2016) MTA has negotiated a construction contract solely with Walsh without releasing an RFP for open bidding. (MTA Board packet, July 7, 2015) 

Meanwhile, MTA has asked the San Francisco Board of Supervisors to approve a $207,000,000 bond, including another $48,000,000 to $162,000,000 in funding for the VNBRT Project, claiming it will repay the bond's 30-year-principal and interest chiefly from parking meters and parking tickets. (See SF Board of Supervisors June 7, 2016 File No. 160465, "Preliminary Official Statement.") Thus, additional penalties on motorists are proposed for the VNBRT-LPA Project that will negatively affect the vast majority of travelers in San Francisco who drive. MTA and SFCTA have also proposed another half-cent increase in the Proposition K local sales tax. 

While remaining publicly unaccountable and ignoring public dissent, MTA remains in violation of the San Francisco Charter's requirements that were a condition of its creation under Proposition A. For example, the Charter requires "Roads that are not gridlocked with congestion." (Charter, §8A.100(1), (7).) Instead, after pouring billions of taxpayer money into MTA's billion-dollar annual budget, San Francisco has the third-worst traffic congestion in the United States. (3/15/16, Bill Disbrow and Daniel DeMay, "Report: San Francisco Has the Third Worst Traffic In The Country.") After voters approved a $248 million repaving and safety bond in 2011, City's streets today remain rated at "fair" by the Metropolitan Transportation Commission. (6/2/16, Joe Rodriguez, San Francisco Examiner, "Transportation commission gives pavement a 'fair' score.'") The money from that 2011 bond has already been spent, much of it to remove traffic lanes and create bicycle "improvements" instead of repaving the pitted streets, but the public will still pay for that bond for another 25 years. Incredibly, Rachel Gordon, spokesperson for DPW, complains, "'Roads aren't sexy. You have to fight to get funding for them.'" (Id.) 

Without sustaining the Appeal, this Board would endorse more of the same, along with significant impacts to a major street and highway through central San Francisco. 

CONCLUSION

The DPW Order falsely claims that clearcutting 88 mature trees in the median and 106 trees on the sidewalks of Van Ness Avenue are "necessary" for the VNBRT Project. It is not, since feasible alternatives remain viable that would achieve the Project's objectives and goals. Under these circumstances, CEQA requires a Subsequent Environmental Impact Report (SEIR), or at minimum a Supplemental Environmental Impact Report on the Project. 

For the foregoing reasons and those stated in the appellate record, this Board would abuse its discretion by adopting the unsupported conclusions of the DPW Order and Addendum. 

The destructive aspects of this Project, its significant impacts on the environment, including the tree removal, significant unmitigated transportation impacts, and impacts to the defining character of Van Ness Avenue/Highway 101, the substantial public dissent, and the proposed exorbitant and wasteful expense of the Project are factors requiring its rejection today by this Board. 

The proposed Project is unjustifiable because it is environmentally destructive and a huge waste of public money. This Board should therefore sustain the Appeal, set aside and vacate DPW's Order and the SFCTA Addendum, and should require a Subsequent EIR or at minimum a Supplemental EIR on the modified Project. 

Sincerely,

Mary Miles

[1] DPW Order 184735 states without support that existing bus speed "averages eight miles per-hour" (Order, p. 1) and would increase by 32% (Order, p. 2). However, the FEIS/FEIR states that existing bus speeds are 5 mph and might increase to up to 7 mph with the Project. (FEIS/FEIR, pp.3-24, 3-28) 

[2] The Charter requires that "at least 85 percent of [Muni] vehicles must run on-time," meaning "no more than one minute early or four minutes late." (Charter §8A.103.(c).) Even with a billion-dollar budget, for ten years MTA has consistently failed to comply with that requirement, with the most recent on-time performance at only 60 percent.

(https://www.sfmta.com/about-sfmta/reports/performance-metrics/percentage-time-performance March, 2016 [viewed May 9, 2016].)

Comment by Ms. Miles in 2013 on the whole Van Ness BRT project.