City's Temporary Emergency Transit Lanes Project: Based on a lie

Temporary Emergency Transit Lanes

Liberals and progressives---progressives are liberals with ideological pretensions---rightly complain about the Trump Administration's many violations of the law. San Francisco liberals in city hall, however, are deliberately violating the law by using the pandemic to justify anti-car projects like this. 

It's simply a lie that there's a traffic "emergency" in San Francisco to justify illegally implementing this project and eliminating the public's right to participate, which is a crucial part of the California Environmental Quality Act (CEQA).

San Francisco is not the only city using a real national emergency to justify this abuse of the planning process to implement projects that normally go through a genuine and required public process: The Pandemic Has Pushed Aside City Planning Rules. But to Whose Benefit?

FROM: 

Mary Miles (SB #230395) 

Attorney at Law for Coalition for Adequate Review 

San Francisco, CA 94102 

TO: 

Angela Calvillo, Clerk 

San Francisco Board of Supervisors 

City Hall, Room 244 

San Francisco, CA 94102 

DATE: July 30, 2020 

BY E-MAIL TO: bos.legislation@sfgov.org 

NOTICE OF APPEAL OF CEQA EXEMPTION(S) OF MTA'S TEMPORARY EMERGENCY TRANSIT LANES PROJECT ("TETL") 

PLEASE TAKE NOTICE that Coalition for Adequate Review hereby appeals to the San Francisco Board of Supervisors the environmental determination(s) of the San Francisco Planning Department and the June 30, 2020 approval and all actions implementing the San Francisco Municipal Transportation Agency's ("MTA's") Temporary Emergency Transit Lanes Project ("TETL") Project, which is neither "temporary" nor exempt from the California Environmental Quality Act ("CEQA"), Pub. Res. Code §§ 21000 et seq. Please distribute a copy of this Notice of Appeal to each Board member and place a copy in all applicable files on the Project. 

Attachments: 

EXHIBIT A: MTA Board Resolution No. 200630-062, June 30, 2020 approving the Project [The referenced "map" was not attached to the MTA document]; 

EXHIBIT B: San Francisco Planning Department's Categorical and Statutory Exemption No. 2020-005472. (The Exemption document was not available before the June 30, 2020 MTA Board meeting, and it was then backdated to June 10, 2020.) 

EXHIBIT C: July 21, 2020, MTA map of proposed Project. 

On June 30, 2020, MTA announced it would illegally implement its TETL Project with no opportunity for public appeal to this Board in violation of CEQA and Chapter 31 of the San Francisco Administrative Code. (Exh. A.) 

MTA's proposed "initial phase" of its TETL Project removes an unstated number of traffic lanes, turning lanes, loading zones, and 837 parking spaces, to install exclusive bus-only and “emergency bicycle lanes” on city streets. (Categorical and Statutory Exemption 2020-0054472 ENV, MTA Memorandum, Ian Trout, SFMTA, to Laura Lynch, SF Planning Dept., June 10, 2020 ["6/10/20 MTA Memo"] p. 3.) The Project would convert travel and parking lanes to bus-only, "emergency" bicycle lanes, or bike/bus/taxi-only "HOV" lanes. (6/10/20 MTA Memo, pp. 2-9.) The Project would also remove turning lanes, loading zones and motorcycle parking. (6/10/20 MTA Memo, p. 11.) 

MTA states, "The proposed changes…are to facilitate members of the public maintaining six feet social distance while making essential trips by bus or bicycle modes." (6/10/20 MTA Memo, p. 10.) MTA: since "social distancing" means very low occupancy on buses, traffic and parking lanes supposedly must be eliminated to create special bus and bicycle-only lanes "to support essential trips," "allow for better physical distancing, and maintain transit reliability for essential trips in light of increasing congestion." (6/10/20 MTA Memo, p. 1.) 

However, as MTA admits, transit ridership has declined by 90%, and travel by other motor vehicles is only 60% of pre-Covid levels. (MTA Fiscal Year 2021-2022 Update, June 30, 2020, p. 12.) 

The Project also proposes removing hundreds of parking spaces to create bicycle lanes "to facilitate members of the public maintaining six feet social distance while making essential trips by bus or bicycle modes." (6/10/20 MTA Memo, pp. 9-10 [emphasis added].) No evidence is provided of any potential increase in essential trips by bicycles or buses. 

The “initial phase” of the Project targets full streets or segments of: Mission Street; Potrero Avenue; Laguna Honda Boulevard; Woodside Avenue; O’Shaugnessy Boulevard; Castro Street; Divisadero Street; California Street; Sacramento Street; Clay Street; 7th Street from Townsend Street to Market Street; 8th Street (from Townsend Street to Market Street); Masonic Avenue; Presidio Avenue; Fulton Street; 4th Street; Geary Boulevard; Haight Street; Lincoln Way; Ulloa Street; West Portal Avenue; Church Street; Park Presidio/Crossover Drive; Post Street; Sutter Street; Ocean Avenue; Hyde Street; Eddy Street; Larkin Street; Geneva Avenue; 19th Avenue/Junipero Serra Blvd.; and Veterans Blvd/Presidio Parkway/Richardson Ave/Lombard Street. (6/10/20 MTA Memo, pages 4 - 8].) 

Parking removals would include 837 metered, unmetered, yellow, white, and blue parking spaces: 

68 spaces on Bayshore Boulevard from Silver Avenue to Cesar Chavez, due to a "proposed bikeway;" 

155 spaces on Mission Street from 11th Street to 1st Street; 

148 spaces on Sacramento Street from Arguello Boulevard to Steiner Street; 

124 spaces on Clay Street, including 9 spaces on Clay Street from Gough Street to Van Ness Avenue, 69 spaces on Clay Street from Larkin to Powell Street, and 46 spaces on Clay Street from Powell to Sansome Street; 

14 spaces on Haight Street from Webster to Buchanan Streets; 

120 spaces on Lincoln Way from 2nd Avenue to 23rd Avenue; 

2 spaces on Ulloa from Wawona Street to West Portal Avenue; 

50 spaces on West Portal Avenue from Vicente to Ulloa Streets; 

23 spaces on Church Street from 15th to Market Streets; 

60 spaces, including 4 blue spaces on Post Street from Gough to Market Streets "due to proposed bikeway;" 

41 spaces on Sutter Street, including 17 spaces on Sutter Street from Kearny to Gough Streets "due to proposed bikeway," and 24 spaces on Sutter from Market to Kearny Streets; 

16 spaces on Eddy Street from Polk to Hyde Streets; and 

209 spaces, including one blue space on Geneva Ave. from Ocean Ave to Santos Street "due to proposed bikeway." 

(6/10/20 MTA Memo, pp. 4-8.) 

The Project also amends the City's Transportation Code to “temporarily authorize the City Traffic Engineer to designate temporary transit-only lanes and create associated tow-away zones in corridors on a map to be appended to the Transportation Code to reduce traffic congestion resulting from the COVID-19 Emergency.” (MTA Board, June 30, 2020 Agenda Packet, p. 7.) 

Thus, the Project includes and approves with no environmental review and no opportunity for public input more TETL changes on any street MTA's "Traffic Engineer" designates. (See Exh. C, MTA, July 21, 2020 Map of more proposed TETL streets.) 

On June 30, 2020, the MTA Board approved the Project, stating that the “initial phase” of the Project would “approve installation of, and amend Division II of the Transportation Code to designate, temporary transit-only lanes on...Laguna Honda Boulevard, both directions, from Clarendon Avenue to Dewey Boulevard; O’Shaugnessy Boulevard, both directions, from Portola Drive to 800 feet southerly; Mission Street, both directions, from 11th to 1st Streets;...7th Street, northbound, from Townsend to Market Streets, 8th Street, southbound, form Market to Townsend Streets; and Masonic Avenue, both directions, from Haight to Geary Boulevard.” (Agenda Packet, p. 5.) 

On July 21, 2020, MTA issued an "update" of the Project that included more "service changes" to implement more TETL changes wherever it pleases with no further approval process. (See Exh. C, and MTA Board, July 21, 2020: "Transit Service & Temporary Emergency Transit Lanes Updates.") 

The Project will also “approve the installation of and amend Division II of the Transportation Code to designate temporary bus/taxi/bicycle-only lanes on...Woodside Avenue, both directions from Laguna Honda Boulevard to Portola Drive; Bosworth Street, both directions, from Elk to Arlington Streets; and Presidio Avenue, both directions, from Sacramento to Geary Boulevard.” (MTA Board, June 30, 2020 Agenda Packet, p. 5.) 

The Project states that “[t]his authorization would be for the duration of the COVID-19 Emergency and up to 120 days after the conclusion of the emergency.” (MTA Board, June 30, 2020 Agenda Packet, p. 7, emphasis added.) 

The Project is not "temporary," however, since it is longer than 6 months with no ending date, and it proposes to make its changes permanent if "MTA takes further action." (MTA Board, June 30, 2020 Agenda Packet, p. 1, emphasis added.) 

The map of future Project streets in the Categorical Exemption shows many additional streets throughout the City that would eliminate traffic lanes, loading zones, and public parking included in the Project. (Categorical Exemption 2020-005447ENV, pages 4 - 8; see also Exh. C, 7/21/20 MTA map.) 

This Appeal includes every "phase," and every past, present, and future part of this Project. 

Approving the Project violates CEQA for the following reasons. 

1. The Project Is Not Categorically Exempt Under CEQA Guidelines Section 15301 or Any Other Exemption. 

MTA and the Planning Department claim that the “COVID-19 Emergency” and March 16, 2020 “Public Health Order" is an “existing facility” justifying a Categorical Exemption from CEQA under 14 Cal. Code Regs. (“CEQA Guidelines”) § 15301. 

MTA is mistaken both factually and as a matter of law, since a temporary “emergency” is not an “existing” facility. 

The Project does not qualify for a Class 1 exemption, since it does not “consist of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public…facilities.” (CEQA Guidelines, §15301.) 

The Project, does not involve a “minor alteration,” but instead proposes a major change of use that may have significant impacts on traffic, parking, energy consumption, air quality, GHG, public safety, and emergency services on affected streets and cumulatively in surrounding areas. 

The Project also is not categorically exempt, because it will have cumulative impacts throughout the areas where traffic lanes and parking are removed. 

For example, congestion on Mission Street has already been worsened by City's billion-dollar "Better Market Street" project, which closed access to Market Street to travelers in cars to create bicycle lanes on January 29, 2020, diverting hundreds of cars to the already-congested Mission Street. MTA now proposes to eliminate a traffic lane and parking on Mission Street, which will worsen congestion in the entire area. A project that may have significant impacts is not exempt under CEQA. 

The Project therefore is not categorically exempt under Guidelines §15301. 

2. The Project Does Not Qualify For A Statutory Emergency Exemption Under CEQA 

The MTA Board Agenda Packet (page 9) states that MTA also claims a “statutory exemption” under Guidelines section 15269. The Categorical Exemption form (page 1) improperly checks a box stating "Class ___ Statutorily Exempt-15269(c) Emergency Projects: Specific actions necessary to prevent or mitigate an emergency," with no support or further explanation. 

MTA's determination to delay and obstruct motor vehicle traffic does not present an “emergency” under CEQA, which is clearly defined and narrowly construed as “a sudden, unexpected occurrence, involving a clear and imminent danger, demanding immediate action to prevent or mitigate loss of, or damage to, life, health, property, or essential public services...includ[ing] such occurrences as fire, flood, earthquake...riot, accident, or sabotage.” (Pub. Res. Code, sec. 21060.3.) 

The proposed removal of traffic lanes and parking and creation of bus and bicycle lanes does not meet that definition or qualify for any statutory or emergency exemption. 

3. MTA Admits That Traffic Remains Significantly Below Pre-COVID Levels, Which Would Not Be An “Emergency” In Any Event. 

MTA claims that vehicle volumes dropped 70% and have now “grown 30% since April 2020.” (MTA Board, June 30, 2020 Agenda Packet, p. 3.) Therefore, those vehicle volumes are now only 60% of pre-COVID volumes. 

MTA claims Muni ridership dropped “roughly 90%," but fails to state that it has already radically cut Muni routes and frequency. (MTA Board, June 30, 2020 Agenda Packet, p. 3.) 

In fact, MTA’s Director of Transportation recommended that people make essential trips in private vehicles rather than public transportation, admitting that cars are the safest mode of transportation during the Covid pandemic. (San Francisco Chronicle, April 14, 2020, Could cars emerge with a better image when SF emerges from coronavirus emergency? The Project would therefore adversely affect public health and safety impacts for essential travel. 

MTA's "carmageddon" scenario is completely unsupported, with MTA expressing its anti-car ideology with no supporting data: “Vehicle traffic is returning faster than transit ridership and cities...such as Taipei, Shanghai, and Seoul, have seen massive increases in traffic congestion as people with means will choose to use their personal vehicles instead of riding transit.” (MTA Board, June 30, 2020 Agenda Packet, p. 3.) 

That speculation does not support either a categorical or statutory exemption from CEQA. No traffic counts are provided. Nor may MTA speculate on unknown future impacts of Covid on traffic to support this Project. 

The Project is in fact a transparent attempt to permanently remove 853 parking spaces, important traffic lanes, and loading zones on City streets. (6/10/20 MTA Memo, pp. 4-8.) If, as MTA fears, traffic volumes do return to pre-Covid levels, the Project will clearly worsen congestion and cause significant impacts on transportation, parking, air quality, GHG, energy consumption, and public safety/emergency access. Since it may have significant impacts, as MTA admits, the Project cannot be categorically exempt under CEQA. 

MTA has provided no evidence that transit ridership will increase after plummeting 90% since COVID if it makes traveling and parking more difficult for motor vehicles. Few people will risk their lives to ride a Muni bus during the pandemic. That MTA admits that its transit ridership is 10% of pre-COVID levels is indisputable evidence that this Project is completely unnecessary. 

4. MTA Has Failed To Provide Notice And Allow Public Participation In The Project’s Creation And Review 

MTA claims its “staff have had to rethink and develop a new way to engage with people.” In fact MTA has failed to “engage with people” at all on this Project, which highlights its determination to implement this Project with no opportunity for public participation and meaningful input as required by CEQA. (MTA Agenda Packet, p. 8.) MTA claims it has met with “various advocacy groups,” "Supervisor offices,” and members of other unnamed “groups,” and that it developed a “mailing list” that was “used to send email updates” to those selected individuals. (Id.) 

That is not public notice or participation required by CEQA, and it is a fundamental violation of CEQA’s purpose to inform the public and allow informed participation. 

Any supervisors who have advocated for the TETL Project must recuse themselves from any participation on this appeal. (Petrovich Development Co. LLC v. City of Sacramento (2020) 48 Cal.App.5th 963, 974-976 [City council's denial of conditional use permit voided due to councilmember's bias].) 

The Categorical Exemption was not in MTA's Agenda Packet, and it was not available either on MTA's or Planning's web site, violating the Sunshine Ordinance, CEQA, other public meeting requirements, and making meaningful public input impossible. (e.g. SF Admin. Code sec. 67.9(a); see also, 67.1, 67.5, 67.7 (a), (b); 67.15(b); 67.16.) 

The document was only provided after Sunshine Ordinance requests to MTA and Planning. As noted, no copy is available of any claimed "statutory exemption," and checking a box on a form for Categorical Exemptions does not satisfy City's need to substantiate a statutory exemption, which in any case does not apply to the proposed TETL Project. 

CONCLUSION 

MTA presents no evidence that its TETL Project will result in increased Muni ridership or bicycling, which would not justify the asserted exemptions in any event. MTA's claimed "emergency" and Class 1 exemptions from CEQA do not apply to this Project, since it will clearly have significant impacts. 

Its duration and MTA's apparent intent to make the Project permanent require full environmental analysis and mitigation of its impacts. MTA has also failed to give public notice, information, and the opportunity for meaningful public input on this Project in violation of CEQA. 

Because it is not exempt from CEQA and may have significant effects on the environment, this Board must reject the TETL Project, reverse MTA's Resolution and the amendment of the Transportation Code, and return all affected streets to their prior condition before installing TETL, including restoring all traffic lanes and parking. 

July 30, 2020 

Mary Miles