Demand to Cure and Correct

Jeffrey Tumlin

FROM:

Mary Miles (SB 230395)

Attorney at Law for

Coalition for Adequate Review

San Francisco, CA 94102

Email: page364@earthlink.net

TO:

Christine Silva, Secretary

Jeffrey Tumlin, Director, and

Board of Directors of the

San Francisco Municipal Transportation Agency (“MTA”)

1 South Van Ness Avenue, 7th floor

San Francisco, CA 94103

DATE: January 5, 2023

DEMAND TO CURE AND CORRECT VIOLATIONS OF BROWN ACT IN MTA BOARD MEETING OF DECEMBER 6, 2022 (GOV. CODE §§ 54960.1 AND 54960.2)

This is a DEMAND TO CURE AND CORRECT MTA’s violations of the Brown Act (Cal. Gov. Code §§ 54950 et seq.) by the MTA Board in its Meeting of December 6, 2022. In that meeting, the MTA Board failed to post items that it discussed and adopted as resolutions. The MTA Board also approved and adopted environmental determinations under the California Environmental Quality Act (“CEQA”) (Pub. Res. Code §§21000 et seq.) without posting those actions on the Agenda.

The Agenda failed to accurately describe the MTA’s “Slow Streets” Project, misleading the public about its scope, environmental impacts, and the actions actually proposed for implementation.

After allowing members of the public only two minutes to comment on the Project to divert and obstruct through travel on public streets throughout San Francisco, the MTA Board then allowed its own members to materially alter and amend the Project described on the Agenda.

The public was thus deprived of the opportunity for meaningful public comment and input on a Project that clearly affects the public’s ability to travel on city streets.

1. BACKGROUND FACTS

From April through November, 2020, the MTA adopted its Covid “emergency” “Slow Streets” Project in four phases.

The Project closed several streets with forced diversions, such as Page Street at Laguna Street, and placed obstacles in traffic lanes and at intersections to obstruct through traffic on other designated “Slow Streets.” MTA claimed an emergency exemption from environmental review under CEQA, claiming that recreationists required the use of the middle and full width of public streets for “social distancing” to walk, ride bicycles, scooters, and skateboards.

To accommodate that alleged need for “social distancing” MTA forced vehicles to travel around obstacles, barriers, and private installations by the San Francisco Bicycle Coalition so that pedestrians and bicyclists could occupy the middle of public streets they designated as “Slow Streets."

Contrary to its promise to end “Slow Streets” when the pandemic ended, MTA instead created “permanent” Slow Streets on Sanchez, Shotwell, Golden Gate Avenue, and Lake Streets in 2021.

The original “Slow Streets” projects in all their phases have consistently been opposed by the public but were affirmed in appeals to the Board of Supervisors. MTA continued to assert that the Project was temporary and would end within 120 days of the end of the pandemic. With that date imminent and “social distancing” restrictions lifted, MTA now legislates authority to the MTA Board to declare any street in San Francisco a “Slow Street” and to implement obstacles, diversions, and obstructions to through travel by vehicles on any of those streets.

On December 6, 2022, the MTA Board dropped the “emergency” pretext and voted to perpetuate and expand its “Slow Streets” Project on any street in San Francisco.

However, the MTA Board failed to place an accurate Project description on the Agenda and to place its CEQA Determination and the amendments of its proposed approvals on the Agenda. After public comment, the MTA Board materially changed the Project and its implementation to other than what was stated on the Agenda. It then approved the significantly changed Project at the December 6, 2022 meeting without public notice or a legal agenda to notify the public.

II. MTA BOARD’S VIOLATIONS OF THE BROWN ACT AT THE DECEMBER 6, 2022 MEETING

The legislative purpose of the Brown Act is stated at the beginning of the statute:

“In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is intent of the law that their actions be taken openly and that their deliberations be conducted openly.

“The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.” (Gov. Code §54950.)

That purpose and the letter of the Brown Act were violated by the MTA Board on December 6, 2022.

A. MTA FAILED TO INCLUDE ITS APPROVAL OF A CEQA DETERMINATION AND THE TRANSPORTATION CODE CHANGES ON THE AGENDA (Gov. Code §§ 54950 et seq.; and, e.g., 54954.2(a); 54954.3.)

On December 6, 2022, the MTA Board failed to place its CEQA Determination (Planning No. 2022-008095ENV) on the Agenda. It nevertheless approved that determination, depriving the public of the opportunity to provide informed and meaningful public comment on that determination. MTA also failed to include a copy of that CEQA Determination with the Agenda or the Agenda packet.

MTA Board was required to post the CEQA Determinations on the Slow Streets Project as separate items on the December 6, 2022 Agenda. (See, e.g., Cal. Gov.Code §54952(a)(1); G.I. Industries v. City of Thousand Oaks (2022) 84 Cal.App.5th 814, 826 [Where a local agency at a regular meeting approves a project with a determination of a CEQA exemption, it must post the CEQA exemption as a separate item on its agenda].)

The adopted MTA Board Resolutions Nos. 221206-116 and 221206-117, which were not on the Agenda, also refer to another exemption under 14 Cal. Code Regs., §15301, which also is not on the Agenda. (See Res. No. 221206-116, page 3.) Other Exemptions are referred to in the two adopted Resolutions that were not on the Agenda even though the MTA Board took action to extend them to the “winter of 2023.”

B. THE MTA BOARD FAILED TO PLACE THE TWO RESOLUTIONS IT ADOPTED ON THE DECEMBER 6, 2022 AGENDA

The MTA Board adopted two Resolutions that were not on the December 6, 2022 Agenda: Resolution Nos. 221206-116 and 221206-117, neither of which are on the Agenda and are significantly changed from the draft single resolution that appeared in the December 6, 2022 Agenda Packet.

Resolution 221206-116 adopted December 6, 2022, adds amendments to the Transportation Code that were not before the public or available before the December 6, 2022 meeting and were not on the Agenda. That Resolution also changes the text of the proposed resolution in the packet that was before the public on December 6, 2022.

The draft resolution in that packet includes a paragraph explaining that excluding Lake Street from the Slow Streets Project would be exempt from CEQA. (12/6/22 Staff Report proposed resolution, page 3) That provision misled the public by implying that the MTA Board would exclude Lake Street from the Project.

Resolution 221206-117 was not on the December 6, 2022 Agenda. That Resolution nevertheless discusses CEQA exemptions that were not itemized on the December 6, 2022 Agenda.

C. MTA FAILED TO ACCURATELY STATE THE FULL SCOPE AND PROJECT DESCRIPTION ON THE AGENDA (Gov. Code §§ 54950 et seq., and, e.g., 54954.2(a)(3).)

The December 6, 2022 Agenda, Item 14, did not list or describe all of the streets the MTA Board adopted as permanent Slow Streets, which under its adopted legislation includes potentially every street in the City along with those already designated. (See, Fn. 1, ante; MTA Staff Report, 12/6/22, page 11 [MTA will expand the Project beyond already named corridors].)

On Lake Street, for example, the Agenda stated only that the MTA Board would ask itself if it wished to consider Lake Street as a Slow Street, not that it would enact legislation making Lake Street a Slow Street. (12/6/22 MTA Board Agenda, Item 14.) Indeed, MTA had already removed the barriers on Lake Street, claiming after overwhelming opposition that it had removed Lake Street from its “Slow Streets” designation.

After misleading the public at the December 6, 2022 meeting, the MTA Board re-designated Lake Street as a “Slow Street.”

D. MTA EXPANDED AND MATERIALLY ALTERED THE AGENDA’S DESCRIPTION OF THE PROJECT AT THE DECEMBER 6, 2022 MEETING AFTER PUBLIC COMMENT, FAILING TO ALLOW PUBLIC COMMENT ON THE AMENDMENTS

After hours of comment on the Agenda item on the Project, the MTA Board made clear its improper predisposition approving the Project, and then created several substantive changes to the Project described on the Agenda, including changes to the City’s Transportation Code affecting the designation of Slow Streets and implementing changes on those streets, and changes to the scope of the Project that were not on the Agenda.

The MTA Board president Gwyneth Borden, after laughing at the many Lake Street opponents of the Project who, among many other opponents, gave hours of their time to attend the meeting and submit comment, made clear she did not take seriously their concerns about being threatened and blocked by bicyclists when trying to enter their own residences.

MTA Board member Manny Yekutiel also made clear he did not regard those hours of public comment worthy of his consideration, and, consistent with his 100 percent record of supporting the San Francisco Bicycle Coalition, voted for the amended Slow Streets Project. MTA Board member Amanda Eaken spent long minutes reciting then changing her amendments to the Project—amendments that were not on the Agenda. 

She then proposed for adoption numerous revisions of the revisions. Not only did the MTA Board refuse to allow public comment on the numerous changes, but the Board’s predisposed positions were then incomprehensible to the public. The Board nevertheless voted for the action(s).

The final MTA Board adopted resolutions were not provided publicly until December 14, 2022, when they were finally provided pursuant to a Public Records Act/Sunshine Ordinance Request. The failure to timely provide to the public the actual text of the legislation adopted on December 6, 2022, reduced the public’s time for administrative appeal by eight days.

D. MTA MISLED THE PUBLIC

By failing to accurately describe the full scope of the Slow Streets Project, failing to accurately state the items to be considered on the Agenda, and by changing the Project after public comment, the MTA Board misled the public and deprived the public of its right to submit meaningful comment on the Project.

III. THE REQUIRED REMEDY: THE MTA BOARD MUST INVALIDATE ALL ACTIONS TAKEN ON ITEM 14 (SLOW STREETS PROJECT) AT THE DECEMBER 6, 2022 MTA BOARD HEARING, AND MUST RE-SCHEDULE A NEW HEARING GIVING THE PUBLIC ADEQUATE NOTICE AND THE OPPORTUNITY TO BE HEARD

Since the MTA Board violated the Brown Act with its approval of Item 14 on the December 6, 2022 MTA Board Agenda, it must immediately take the following actions:

1) Invalidate and declare null and void the MTA Board’s approval of CEQA Determination(s), including Planning No. 2022-008095ENV adopted by that Board on December 6, 2022, and any other exemptions claimed to justify approving the Project.

2) If the Slow Streets Project or any part of it is scheduled for a approval before the MTA Board,

a) The Agenda must clarify the full scope of the Slow Streets Project before scheduling any approval hearing on it, including the names and maps or diagrams of every street and street segment in San Francisco that is or will be included in the Slow Streets Project at any time; and

b) For each street or segment proposed for inclusion, the Agenda must state what actions will be implemented, including barriers, speed humps, diversions, forced turns, parking elimination, and any other physical changes to each and every street and street segment proposed for inclusion in the Project.

3) The Agenda must be posted at least 72 hours before any MTA Board meeting, and must include the approval action and the CEQA determination as separate agenda Items. The Agenda must include copies of all proposed approval legislation and every CEQA determination.

4) The Project, approval legislation, and CEQA determination will not be changed without continuing the hearing of that item to allow public notice and comment.

5) The public will have the full opportunity to speak to the items on the Agenda.

Respectfully submitted,

Mary Miles

Attorney at Law