FROM:
Mary Miles (SB #230395)
Attorney at Law
San Francisco, CA 94102
TO:
Erica Major, Clerk, and
Members of the San Francisco Board of Supervisors
and the Land Use and Transportation Committee (“LUC”)
Room 250, City Hall
San Francisco, CA 94102
DATE: November 28, 2022
PUBLIC COMMENT AND REQUEST FOR CONTINUANCE ON ITEM 18 OF THE DECEMBER 6, 2022 BOARD OF SUPERVISORS AGENDA: “[Park Code - Upper Great Highway - Pilot Weekend and Holiday Vehicle Restrictions]” BOS FILE NO. 220875
This Comment OBJECTS to and OPPOSES Item 18 of the LUC Agenda, and also requests a continuance of that Item. Please distribute this Comment to LUC members and place copies in all applicable files, notably BOS File No. 220875.
The Project proposes to close Upper Great Highway to vehicles “on a pilot basis, on weekends and holidays until December 31, 2025.” (Agenda, Item 1.) On November 8, 2022, more than 100,000 of your constituents Citywide voted to reopen the Upper Great Highway.
This Comment also objects to the omission in the Board’s File 220875 of numerous public comments opposing the Project.
On November 8, 2022, more than 100,000 of your constituents voted Yes on Proposition I to stop the City’s closure of public streets, including the April, 2020 closure of Upper Great Highway (“UGH”). The ballot measure lost after several tech billionaires, the San Francisco Bicycle Coalition (“SFBC”), and Walk SF contributed to a million-dollar campaign to defeat it. https://sfethics.org/ [1]
On November 28, 2022, the Land Use Committee revised the proposed legislation to state that the Upper Great Highway would be closed to the public driving cars from noon every Friday to 6:00 a.m. every Monday, and on
I. THE BOARD MUST CONTINUE ITEM 1 TO PROVIDE ADEQUATE PUBLIC NOTICE
A. Inadequate Public Notice: This hearing of Item 18 should be continued, because public notice of the Land Use Committee proceeding was inadequate due to the Thanksgiving holiday and closed City agencies that might otherwise provide public access to the voluminous Board file on the Project. (See, Cal. Gov. Code, §54957.5 (b)(1-2); Sierra Watch v. Placer County (2021) 69 Cal.App.5th 1, 10-11.)
Under the Brown Act, the CEQA Determination must be posted on the Agenda as an Item separate from the approval action. The CEQA Determination was not posted as a separate item at the Land Use Committee proceeding, or in the Full Board Agenda for December 6, 2022. Both of those proceedings were in violation of the Brown Act. (Cal. Gov. Code, §54957.5 (b)(1-2); Sierra Watch v. Placer County (2021) 69 Cal.App.5th 1, 10-11.) As a result, the public was deprived of lawful notice and the opportunity to meaningfully comment on the Project, which now proposes closing the Upper Great Highway for three days every week, holidays, and “special events” until December 31, 2025 as a “pilot.”
B. The Land Use Committee’s Amendment Does Not Cure The Lack Of Information To The Public Before The November 28, 2022 Hearing on the Project.
The hearing before the Land Use Committee did not make clear the Project’s times proposed for closing the Upper Great Highway. The public, therefore, was not informed of the new Project description now closing this major arterial to the public from noon Fridays to 6:00 a.m. Mondays.
The Land Use Committee should have postponed its hearing for that amendment, but instead forwarded the amended legislation to the Full Board without allowing the public notice and the opportunity to address that amendment in the only “hearing” where oral comment would be taken. The failure to postpone that hearing violated the Brown Act and CEQA.
At the Land Use Committee, the proposed Ordinance at § 6.13(b) failed to state the time of closure on Fridays. The Agenda stated only that “private vehicles” would be “restrict[ed]” “on weekends and holidays until December 31, 2025.”
The “CEQA Exemption Determination” (2022-007356ENV) also fails to describe the hours of closure. (2022-007356ENV, pdf pages 6 and 11.) That document states that the “exact time of private vehicular closure to be determined.” (Id. at Exemption Determination, page 11.)
This Board must make clear to the public in advance of any public hearing in both the proposed ordinance and in the CEQA Determination exactly what is being proposed, both to provide an accurate Project description to the public, and to state this Board’s rationale for any weekday closure. That did not happen at the only public hearing on this Project.
Because the Agenda and other documents failed to state the exact times and dates of closure, the Board failed to provide adequate information for informed public input on the Project. The proposed legislation and the CEQA Determination must be returned to the Land Use Hearing for a properly noticed public hearing with the proposed closure times on the Agenda.
The public cannot meaningfully comment on the proposed legislation without an accurate Project description.
The noon Friday closure of the upper Great Highway is not needed for the alleged purpose described in the proposed ordinance.
C. Time And Public Notice Are Inadequate To Provide Comment At This Hearing
Since adequate notice was not provided at the Land Use Committee hearing, this Board must return Item 18 to the Land Use Committee to provide adequate notice and the opportunity for informed public comment on the scope of the Project. The time was also inadequate to submit public comment at the Land Use Committee, due to scheduling hearing on this important Project on the Monday after the Thanksgiving weekend, which also deprived many people of the opportunity for meaningful comment.
II. THE PROJECT IS NOT EXEMPT UNDER CEQA
The Project continues the closure of the Upper Great Highway implemented with no public process in April 2020, which blocked access with locked gates to 20,000 or more vehicles every day.
The Project now proposes closing the upper Great Highway to vehicles from Friday afternoons [time unstated] through Monday mornings at 6:00 a.m., on holidays, and “special events” until December 31, 2025. (Proposed Ordinance, page 6.) The Ordinance claims its purpose is for a three-year “pilot” to allow City’s Municipal Transportation Agency (“MTA”) to collect data. (Id. at pages 6-7.)
The closure of Great Highway Project originated in April, 2020, with a private text exchange between outgoing Supervisor Gordon Mar and Jeffrey Tumlin, the unelected Director of the MTA. (See, Attachment A, April 6 and 8, 2020 text exchanges between Mar and Tumlin, and Mar 5/26/21 email, producing those texts in response to a Public Records request.) [2]
This public highway was then closed in April 2020, with no public proceeding or opportunity for public input. Since the Upper Great Highway already had dedicated bicycle paths, the covid “social distancing” did not apply.
Since the closure of Upper Great Highway, many public comments opposing that action have been submitted in proceedings before City’s MTA, SFCTA, Recreation and Parks Department (“Rec-Park”), and discussions with City officials documenting the Project’s significant impacts on traffic congestion; public safety, including emergency services by police, fire, ambulance, and evacuation in emergencies such as earthquakes and fire; VMT; GHG; energy consumption; noise; public access to the beach by disabled and senior residents and visitors; biological resources, including damage by bicyclists and recreational users to the habitat of an threatened species unique to the area, the Snowy Plover; and impacts on residents’ peaceful enjoyment of neighborhoods throughout the area. All of those comments are incorporated by reference to this Comment and are part of the administrative record of this Project.
More than 16,000 people signed a petition opposing the Project, also part of the administrative record. Their complaints have gone unaddressed by City agencies.
On August 21, 2021, the City issued a notice through its Rec-Park Department re-opening Upper Great Highway to vehicles from 6:00 a.m. Mondays to around noon on Fridays. However, the significant impacts of closing the public street continue on the days per week that it remains closed to vehicle travel.
After refusing to provide information pursuant to the City’s Sunshine Ordinance and several Sunshine Ordinance Task Force (“SOTF”) complaints, Mr. Ginsburg, Director of Rec-Park, was held in willful violation of the City’s Sunshine Ordinance. [3] City later unconvincingly claimed the Friday closure was necessary due to lack of staff to lock the gates blocking Upper Great Highway because staff apparently went home early on Fridays.
The City again closed upper Great Highway for several months from April 1, 2022 to October, 2022 when its Department of Public Works (“DPW”) refused to clear sand from the Highway and instead locked the gates blocking vehicles from entering the Upper Great Highway. That agency implausibly claimed it lacked funds to sweep this public street.
The City additionally lent its support to the illegal obstruction of Great Highway on Thursday p.m. commute hours by around 20 bicyclists who ride in slow motion in the middle of the public Upper Great Highway. (https://www.youtube.com/watch?v=432W3YjaqAA ) Instead of arresting them, the City provided them with a special police escort to assist their illegal obstruction of traffic. Again, public complaints have been ignored by every public agency.
In spite of the hundreds of letters documenting the Project’s negative impacts, the City has ignored those impacts and the travelers and residents affected by them.
On November 8, 2022, more than 100,000 of your constituents Citywide voted to reopen the Upper Great Highway.
District 4 voters voted against re-election of Supervisor Mar, who for nearly three years has ignored his constituents on the issue of Upper Great Highway. Now, in Supervisor Mar’s last days in office, he proposes to close the four-lane public street Upper Great Highway to travelers in cars for up to three days per week and holidays for another three years.
There is no need to close Upper Great Highway for another three years for the proposed “pilot program.” Data showing the Project’s impacts is already available. Given those impacts, closing the upper Great Highway to vehicles requires an EIR and effective mitigation measures that do not add to the impacts on neighborhood streets. (See, e.g., Letter from Sierra Club, packet at pdf pages 237-238.)
Better yet, this Board should reject the ill-conceived closing of this public street.
Collection of additional data on bicyclists, pedestrians and full-time recreationists on the four-lane highway is unwarranted, because the impacts have been established of diverting 20,000 already-counted drivers, there is no “social distancing” rationale, and there are already dedicated bicycle paths and a beachside pedestrian path on the Upper Great Highway. If more counts were needed for any reason, they could be collected without closing the Upper Great Highway to 20,000 daily vehicle travelers.
Vehicle counts can be made when the Great Highway is open to vehicles. The failure of MTA to assess the impacts of diverting 20,000-plus vehicles to neighborhood streets does not require continuing that illegal policy. Bicycle, skateboard, and pedestrian counts are irrelevant, since the proposed Project would have no impacts on those recreational activities. (See, e.g., California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369, 386; Parker Shattuck Neighbors v. Berkeley City Council (2013) 222 Cal.App.4th 768, 782-783.)
A. Closing Upper Great Highway Is Not Exempt From CEQA
Closing a major public street is a Project under CEQA that requires an environmental impact report (“EIR”). The magnitude of the Project, its significant impacts, and its change of use of the upper Great Highway do not qualify for an exemption from CEQA.
B. The Section 21080.25 Exemption Does Not Apply
The City’s Planning Department incorrectly claims that CEQA does not apply to the Project. (“CEQA Exemption Determination” 2022-007366ENV.)
The Project’s impacts preclude any CEQA exemption, and those impacts were documented long before that Exemption dated September 28, 2022.
1. The Exemption Contains No Accurate or Adequate Project Description
As already discussed, the Exemption fails to accurately and adequately describe the Project, precluding meaningful public input.
2. The Claimed Exemption Under Section 21080.25(b) Does Not Apply, Because That Exemption Only Applies To Streets Open To Vehicle Travel
The claimed exemption under Pub. Res. Code § 21080.25 does not apply to this Project by its own statutory definition.
Section 21080.25(a)(2) defines “Highway” as “a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel. ‘Highway’ includes a street.” (Pub. Res. Code §21080.25(b)(2). [emphasis added].)
Here, the Project proposes to close the Upper Great Highway to vehicular travel. The claimed exemption therefore does not apply.
3. The Claimed Exemption Under Section 21080.25(b)(1) Does Not Apply Because Upper Great Highway Is Not A “Pedestrian and bicycle facility[ies], including new facilities” Nor A “bikeway[] As Defined In Section 890.4 Of The Streets And Highways Code.”
The claimed Exemption (pdf, page 6, Table 1) claims that the Project is exempt as “(1) Pedestrian and bicycle facilities, including new facilities. For purposes of this paragraph, ‘bicycle facilities’ include, but are not limited to, bicycle parking, bicycle sharing facilities, and bikeways as defined in Section 890.4 of the Streets and Highways Code.” (CEQA Exemption Determination Case No. 2022-007356ENV, pdf, page 6.)
The Project, however, does not qualify for that exemption, because the Upper Great Highway is not a pedestrian and bicycle facility, and it does not meet the definition of a “bikeway” in section 890.4 of the Streets and Highways Code, which defines “bikeways” as facilities that provide “primarily for, and promote, bicycle travel.” (Sts. & Hwys. Code §890.4 [emphasis added].)
Moreover, the Project’s purpose is explicitly stated in the proposed legislation: to “restrict private vehicles from the Upper Great Highway” until December 31, 2025. (Proposed Ordinance, pages 1, 6, and 7.) The purpose is to collect and publicly report data on uses of the Upper Great Highway and surrounding streets, and make traffic recommendations based on traffic conditions and community outreach during the pilot period. (Ibid., pp. 6-7.) That purpose does not include developing “pedestrian and bicycle facilities.”
The claimed exemption under Pub. Res. Code § 21080.25(b)(1) therefore does not apply to this Project.
4. No Other Exemption Is Claimed Or Applies To This Project
III. THE PROJECT DOES NOT COMPLY WITH GENERAL PLAN, CHARTER, AND PLANNING CODE SECTION 101
Contrary to the “General Plan Referral” of September 28, 2022, the Project is not consistent with Planning Code Section 101.1 “Priority Policies.”
For example, the Project plainly conflicts with Planning Code §101.1(4), since it clearly has impacted and will continue to “overburden our streets or neighborhood parking.” Closing the Upper Great Highway to 20,000 cars per day obviously diverts those vehicles to neighborhood streets, as already documented in public comment for more than two years.
The Project also clearly conflicts with section 101.1(6), which requires that “the City achieve the greatest possible preparedness to protect against injury and loss of life in an earthquake.” Disaster preparedness is not accomplished by closing critical public streets allowing emergency vehicles and evacuation in the event of earthquakes, fires and other disasters.
IV. THE PROJECT DOES NOT COMPLY WITH VEHICLE CODE SECTION 21101
The proposed Ordinance falsely claims that it is “consistent” with Vehicle Code section 21101. It is not.
V. THE PROJECT DOES NOT COMPLY WITH THE COASTAL ACT OR THE CALIFORNIA ENDANGERED SPECIES ACT
These issues cannot be addressed here due to lack of adequate notice and time for public comment. City’s documents fail to address these issues.
CONCLUSION
The Board should re-open upper Great Highway every day of the week, and it should not adopt any closures of this critical public street.
Mary Miles
[2] Tumlin was appointed to the $342,483-per-year MTA position in November 2019. He was then a principal director of the Nelson\Nygaard Consulting firm, which received City funding for consulting documents on City projects, many of which advocated for adverse impacts on car travel on public streets.
