Tuesday, March 18, 2008

Proposition A is null and void

The people now in charge of running our city government---especially the Board of Supervisors---are so arrogant they think they can do whatever they want, regardless of the law. Since Prop. A was put on the ballot by the Board of Supervisors, it is not exempt from the California Environmental Review Act (CEQA) requirement to prepare an environmental review of the measure before it was placed on the ballot (see Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4th 165, 190). Of course they did no such review, which makes Proposition A null and void. Instead of the required environmental review, the Planning Department's environmental review officer simply faxed a handwritten note to the Board of Supervisors exempting the city from CEQA!

* Most of Prop. A is pre-empted by state law, which sets strict limits on how local jurisdictions can regulate traffic on their streets.

* Prop. A essentially dumps the entire San Francisco Traffic Code and replaces it with anti-car, anti-parking measures.

* By dumping the entire Traffic Code, Prop. A also eliminates useful programs, like the Residential Parking Permit Program.

* The city has been out of compliance since 1991 with the requirements of the Congestion Management law.

* Prop. A is inconsistent with the city’s General Plan and Proposition M.

* The city has no valid General Plan, which means it can’t make valid consistency findings for new ordinances, including those implementing Prop. A. The General Plan’s Housing Element was invalidated by the Court of Appeal last year.

The General Plan contains no valid Land Use Element, and the Transportation Element still contains legislation implementing the Bicycle Plan, which was invalidated by the Superior Court last year.

More details on these and other issues surrounding Prop. A are below in the public comment submitted to the Board of Supervisors by local environmental attorney Mary Miles on behalf of the Coalition for Adequate Review:

Mary Miles (SBN #230395)

Attorney at Law, and
Coalition for Adequate Review
San Francisco, CA

TO: Angela Calvillo, Clerk, Honorable Aaron Peskin, President, and
San Francisco Board of Supervisors
Room 244, City Hall
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102

DATE: March 18, 2008

[Board of Supervisors Agenda Item No. 6, Full Board Meeting of March 18, 2008, File No. 080236]

This is public comment on the proposed Ordinance described above (hereinafter “the Ordinance”) to repeal the San Francisco Traffic Code and enact “Division I of the San Francisco Transportation Code to Conform to the Requirements of Proposition A.” The Coalition for Adequate Review is an unincorporated association dedicated to assuring complete and accurate review, informed decision-making and public participation in the review of major projects proposed in San Francisco, assuring that environmental and other impacts are properly analyzed and mitigated and that alternatives are offered and analyzed, and that such projects are consistent with the City’s General Plan and Codes and with state and federal law. This Comment is submitted in the public interest.

Proposition A was placed on the San Francisco ballot as a proposal to amend the City’s Charter, transferring broad authority over transportation issues to the Board of the Municipal Transportation Agency (“MTA”) from the Board of Supervisors. Proposition A also asserts that the City has broad new powers over regulating traffic and streets. Examples (not inclusive) are:

§8A.102.7: The Charter would be changed to give the MTA the “exclusive authority to adopt regulations that control the flow and direction of motor vehicle, bicycle and pedestrian traffic, including regulations that limit the use of certain streets or traffic lanes to categories of vehicles and that limit the speed of traffic; and to design, select, locate, install, operate, maintain and remove all official traffic control devices, signs, roadway features and pavement markings that control the flow of traffic with respect to streets and highways within City jurisdiction...”

§8A.102.8: The Charter would be changed to give the MTA Board “the excusive authority to adopt regulations limiting parking, stopping, standing or loading as provided by state law and to establish parking privileges and locations subject to such privileges for categories of people or vehicles as provided by state law...”

§8A.102.9: The Charter would give the MTA Board “exclusive authority to establish policies regarding and procure goods and services for the enforcement of regulations limiting parking, stopping, standing or loading and the collection of parking-related revenues and, along with the Police Department, have authority to enforce parking, stopping, standing or loading regulations.”

§8A.103(e): Directs the MTA Board (“shall”) to “adopt Agency rules setting forth the methods by which performance shall be measured....”

§8A.103(f): Directs the MTA Board (“shall”) to “issue a Climate Action Plan to the Board of Supervisors and the Commission on the Environment by January 1, 2009,” which “shall describe measures taken and progress made toward the goal of reducing greenhouse gas emissions from San Francisco’s transportation sector to 80% of 1990 levels by 2012 and shall further address progress toward the following goals: .... (4) Increasing transit trips and reducing private vehicle trips within the City; (5) Increasing the use of bicycling and walking as alternate forms of transportation; and (6) Improving regional transit connections to reduce private vehicle use by commuters.”

§8A.105(e): Declares that “It is the policy of the City and County of San Francisco to use parking-related revenues to support public transit. To that end, the following parking-related revenues deposited in the Transportation Fund shall be used to support the capital and operating expenses arising from the agency’s transit functions: (1) Revenues from parking meters...; (2) Revenues from off-street parking facilities under the jurisdiction of the Agencies (excluding facilities owned by the Parking Authority)...; (3) Revenues from fines, forfeited bail, or penalties for parking violations...”

§8A.105(f): Gives the MTA Board the power to “set aside from the general revenues of the City and County and deposit in the Transportation Fund to support the agency’s transit services an amount equivalent to 80 percent of the revenues received form the City’s tax on occupation of parking spaces. Additional amounts appropriated as a result of this subsection after July 1, 2008 which were not previously available to support transit service shall be used exclusively to: (1) support implementation of the transit service improvements recommended by the Transit Effectiveness Project or any subsequent system-wide route and service evaluation with first priority given to the hiring of full time on-going staff and expansion of training for Agency employees, supervisors and managers...”

§8A.112(a): Gives the MTA Board of Directors “all powers and duties of the former Parking and Traffic Commission.”

§8A.112(b): Declares as “City policy” that the Director of Transportation may simultaneously serve as the Parking Authority Executive Director.

§8A.113(a): Declares that, “The [MTA] shall be responsible for management of parking and traffic functions within the City, so as to (1) Provide priority to transit services in the utilization of streets, particularly during commute hours while maintaining the safety of passengers, pedestrians, cyclists and motorists; (2) Facilitate the design and operation of City streets to enhance alternative forms of transit, such as pedestrian, bicycle, and pooled or group transit (including taxis); (3) Propose and implement street and traffic changes that gives the highest priority to public safety and to impacts on public transit, pedestrian, commercial delivery vehicles, and bicycles; (4) Integrate modern information and traffic-calming techniques to promote safer streets and promote usage of public transit; (5) Develop a safe, interconnected bicycle circulation network; and (6) Ensure that parking policies and facilities contribute to the long term financial health of the [MTA].”

§8A.113(b): Declares that “It shall be City policy that the [MTA] manage the Parking Authority so that it does not acquire or construct new or expanded parking facilities unless the [MTA] finds that the costs resulting from such acquisition, construction, or expansion...will not reduce the level of funding to the Municipal Railway from parking and garage revenues under Section 16.110 to an amount less than that provided for fiscal year 1999-2000, as adjusted by the Controller for inflation; further provided that it shall be City policy that before approving the acquisition, construction or expansion of a parking garage, the Agency’s Board of Directors shall make a finding that the operation of the garage will advance or be consistent with the City’s Transit First Policy.”

§8A.115(b): Amends the Transit-First Policy to add: “The City may not require or permit off-street parking spaces for any privately-owned structure or use in excess of the number that City law would have allowed for the structure or use on July 1, 2007 unless the additional spaces are approved by a four-fifths vote of the Board of Supervisors. The Board of Supervisors may reduce the maximum parking required or permitted by this section.”

§5: Proposition A requires: “No later than 90 days after the effective date of this measure, the Board of Supervisors shall adopt legislation deleting all provisions of the San Francisco Traffic Code that are not consistent with Article 8A of the Charter and converting such provisions to rules and regulations of the [MTA] Board of Directors that shall b e subject to amendment or repeal by the [MTA] Board of Directors...” (footnote #1)

Proposition A was heard in the Board’s Rules Committee on July 5 and July 10, 2007. It was then “referred without recommendation as Committee Report” to the full Board on July 10, 2007. It was continued to July 31, 2007, when it was “ordered submitted” as a proposal to the voters as Proposition A (See Board of Supervisors’ File No. 070731) shortly before the statutory deadline (See Gov. Code §34458).

The Proposition was declared “exempt” from CEQA in a faxed communication from Paul Maltzer (Planning Department Environmental Review Officer) to Mary Red (Secretary of Board of Supervisors Land Use Committee) on June 5, 2007, referring only to File No. 070731. The exemption is a handwritten note that reads: “Board File #070731 Exempt from CEQA, CEQA Guidelines §15060(c)(2) Non-physical exemption June 5, 2007 Paul Maltzer.”

The Ordinance appeared on February 12, 2008 when it was assigned to the Board of Supervisors’ Land Use Committee under File No. 080206, described as “Repealing the San Francisco Traffic Code and enacting Division I of the San Francisco Transportation Code to conform with the requirements of Proposition A.” It was approved on first reading by the full Board at its meeting on March 11, 2008, and is now before the Board for final approval as Item 6 on the Agenda of March 18, 2008.

For the following reasons, the Board’s approval of the Project violates CEQA and the California Constitution:

1. The Board of Supervisors placed Proposition A on the ballot without first conducting CEQA review. Proposition A is a Project that will plainly have significant adverse impacts on traffic, transit and parking.

City’s reason for declaring Proposition A (“the Project”) exempt from CEQA is spurious, since the Project will clearly result in changing the configuration of streets, eliminating private and public parking facilities and street parking. These are “physical” changes and Proposition A is therefore a project under CEQA (14 Cal. Code Regs. [“Guidelines”] §15378(a)).

Proposition A confers broad new powers on the MTA to “control the flow and direction of motor vehicle, bicycle and pedestrian traffic, including regulations that limit the use of certain streets or traffic lanes to categories of vehicles and that limit the speed of traffic; and to design, select, locate, install, operate, maintain and remove all official traffic control devices, signs, roadway features and pavement markings that control the flow of traffic with respect to streets and highways within City jurisdiction...” (§8A.102.7). Along with the Project’s mandates to eliminate parking facilities and curtail automobile traffic (Id. and, e.g., §§8A.113(a), 8A.113 (b), 8A.115(b), these are clearly actions that have a potential for resulting in either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment, since they will change the configuration of streets, lanes, pavement markings, and official traffic control devices (Guidelines §15378(a)) (Id. and, e.g., §§8A.113(a), 8A.113(b), 8A.115(b)).

Proposition A was introduced and placed on the ballot by the City’s Board of Supervisors, not by the public. It is therefore not exempt from CEQA. (Guidelines §15378(b)(3); and, e.g., Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal. 4th 165, 190) City was required to prepare an environmental impact report on this Project before it was submitted to the voters. (Friends of Sierra Madre, supra, 25 Cal. 4th at 190: “[A] preelection EIR should be prepared and considered by the city council before the council decides to place a council-generated initiative on the ballot...Voters who are advised that an initiative has been placed on the ballot by the city council will assume that the city council has done so only after itself making a study and thoroughly considering the potential environmental impact of the measure.”)

Since the City did not prepare the required EIR, the ballot initiative and the proposed Ordinance are null and void.

2. The Ordinance and the Project Are Null and Void Because They Are Preempted. City may not regulate traffic, create or implement traffic control devices, obstruction or blocking of vehicle flow, lane elimination or any other physical changes to City streets.
Significant parts of Proposition A are null and void, because they are preempted under the California Constitution article XI, §7: “A county or city may make and enforce within its limits all local, police, sanitary and other ordinances and regulations not in conflict with general laws.” A conflict exists where an ordinance contradicts, duplicates or enters an area fully occupied by general law, either expressly or by legislative implication (e.g., O’Connell v. City of Stockton (2007) 41 Cal. 4th 1061, 1067; Sherwin-Williams v. City of Los Angeles (1993) 4 Cal. 4th 893, 898). In this case the Project directly conflicts with, duplicates and/or enters a field fully occupied by the California Vehicle Code and other state statutes such as the Streets & Highways Code.

For obvious reasons of uniformity and public safety, the Vehicle Code, section 21, expressly prohibits any local authority from enacting legislation “on the matters covered by this code unless expressly authorized herein.” The California Supreme Court explained the State’s “plenary power and its preemption of the entire field of traffic control” in Rumford v. City of Berkeley (1982) 31 Cal. 3d 545, 550: “‘The streets of a city belong to the people of the state.’” (Quoting Ex parte Daniels (1920) 183 Cal. 636,, 639) “The regulation of traffic on streets is not one of those ‘municipal affairs’ over which local authorities are given power superior to that of the Legislature.” (Rumford, supra, 31 Cal. 3d at 549, Fn.3) The state legislature expressly fully occupied and preempted the entire field of traffic control when it enacted the Vehicle Code in 1935 and recodified it, adding §21 in 1959 (See City of Lafayette v. County of Contra Costa (1979) 91 Cal.App.3d 749, 755; O’Connell v. City of Stockton, supra, 41 Cal. 4th at 1073-1074).

“[I]f the matter is one of exclusive statewide concern there is no room for municipal regulation.” (Witkin, Summary of California Law, 10th Ed., Ch.X, §986, p. 565; §1000, p. 592-594) “Traffic, even within a city, is of statewide concern.” (Id. at §1003, pp.597-598)

The City “does not have a ‘very wide discretion’ under the police power in legislating in the field covered by the Vehicle Code. Instead it has no police power in that area at all,’ unless expressly authorized by the legislature.” (City of Lafayette, 91 Cal. App. 3d at 755, emphasis in original; and see O’Connell v. City of Stockton, supra, 41 Cal. 4th at 1074) “[I]f there is a doubt as to whether or not such a regulation is a municipal affair, that doubt must be resolved in favor of the legislative authority of the state.” (Ex parte Daniels, supra, 183 Cal. 636 at 639)

Even if Proposition A were not preempted by the legislature’s express intent to occupy the field, it would be impliedly preempted, because uniformity of traffic laws is clearly a matter of statewide concern that can brook no local contradiction or duplication.

The City may not regulate traffic or create and implement traffic control devices or obstructions to the flow of traffic. The City may not give superior rights to bicycles or other alternative forms of transportation to vehicles on city streets. Nor may the city remove traffic lanes or “limit the use of certain streets or traffic lanes to categories of vehicles.” (Prop. A, §8A.102.7) (See, e.g., Veh. Code §21101.6; City of Lafayette, supra, 91 Cal.App.3d at 756-57; Rumford, 31 Cal. 3d at 554) City may not control traffic flow at intersections (e.g., Veh. Code §§21450 (intersections controlled by traffic signals); §21800 (intersections without signals); §22450(a) (Stop sign limit lines); 21456.3(c) (Red light limit lines for bicycles). The Vehicle Code occupies the entire field of regulating traffic speed. (e.g., Veh. Code §§22352, 22400, 22358.5)

Because Proposition A claims local authority to regulate traffic, it is preempted, null and void.

3. The Ordinance goes far beyond the purported requirements of Proposition A, and itself requires CEQA evaluation and consistency findings.

Far from simply repealing parts of the Traffic Code that are not consistent with Proposition A’s changes to Article 8A of the Charter “and converting such provisions to rules and regulations of the [MTA] Board of Directors,” the Ordinance repeals the entire San Francisco Traffic Code, including many sections that are not inconsistent with Proposition A. (footnote #2) Assuming that Proposition A were valid, such consistency would only require changing a few words in the Traffic Code, such as changing “Department of Parking and Traffic” to “Municipal Transportation Agency,” or, if valid and applicable, changing “Board of Supervisors” to “MTA Board.” Instead, the Ordinance uses Proposition A as a pretext for sweeping changes that will have significant adverse impacts on parking, traffic, and transit throughout San Francisco.

For example, without explanation the Ordinance summarily repeals Article 15 of the Traffic Code that establishes the City’s Residential Permit Parking Program. (footnote #3) Repeal or alteration of the Residential Permit Parking Program will cause severe impacts on parking, traffic, and air quality and must be analyzed under CEQA. It is also in conflict with the General Plan and the requirements of Proposition M. The Ordinance also repeals, e.g., Traffic Code §96 (prohibiting bicycle-riding on sidewalks), and §96.1 (prohibiting bicycle riding on walkways in or through the Broadway Tunnel), and §213 (use of parking meter and garage revenue--establishment of Parking Revenue Fund), leaving unexplained how the huge revenues from parking will be accounted for and expended.

4. Proposition A is inconsistent with the City’s General Plan and the Priority Policies of Proposition M.
When City’s legislative body places an initiative on the ballot, it must be consistent with the City’s General Plan. Proposition A and the Ordinance are inconsistent with both the General Plan and the mandatory policies of Planning Code §101.1 et seq. (Proposition M), and will cause further traffic congestion and increased emissions and does not mitigate the Project’s traffic, transit and parking impacts. The following are examples (not all-inclusive) of such inconsistencies:

* Commerce and Industry Element
Objective 6: “Maintain and strengthen viable neighborhood commercial areas easily accessible to city residents.”
The Proposition and Ordinance directly conflict with this by eliminating and overburdening the City’s already-inadequate parking facilities, eliminating neighborhood parking, curtailing and prohibiting parking for retail and residential uses, and other measures that will cause traffic congestion and adversely affect neighborhood commercial areas and the public’s access to them.
Policy 6.9: “Regulate uses so that traffic impacts and parking problems are minimized.”
The Proposition and Ordinance will cause severe parking, traffic and transit impacts, for which they propose no mitigations.

*Transportation Element
Objective 1: “Meet the needs of all residents and visitors for safe, convenient and inexpensive travel within San Francisco and between the city and other parts of the region while maintaining the high quality living environment of the Bay Area.”
By causing significant impacts on parking and traffic, the Proposition and Ordinance fail to meet the needs of most residents and visitors who choose to drive automobiles and need parking.
Policy 1.6: “Ensure choices among modes of travel and accommodate each mode when and where it is most appropriate.”
The Proposition and Ordinance punish the vast majority of residents and visitors who drive automobiles by eliminating parking and causing increased congestion, which also adversely affects public transit.
Policy 17.2: “Encourage collaboration and cooperation between property owners and developers to allow for the most efficient use of existing and new parking facilities.”
The Proposition and Ordinance do not encourage efficient use of existing and new parking facilities. Rather, they cause severe parking shortages on public streets and in parking facilities citywide.
Policy 30.1: “Assure that new or enlarged parking facilities meet need, locational and design criteria.”
The Proposition and Ordinance directly conflict with this Policy by assuring that parking needs of residents and visitors will not be met.
Policy 30.6: “Make existing and new accessory parking available to nearby residents and the general public for use as short-term or evening parking when not being utilized by the business or institution to which it is accessory.”
The Proposition and Ordinance conflict with this provision.
Objective 33: “Contain and lessen the traffic and parking impact of institutions on surrounding residential areas.”
The Proposition and Ordinance eliminate parking, causing parking and traffic impacts, and worsening a severe parking deficit citywide.
Policy 33.2: “Protect residential neighborhoods from the parking impacts of nearby traffic generators.”
The Proposition and Ordinance do nothing to protect residential neighborhoods from nearby traffic generators, eliminate the Residential Parking Permit program, and cause significant adverse parking and traffic impacts citywide.
Policy 34.1: “Regulate off-street parking in new housing so as to guarantee needed spaces…”
The Proposition and Ordinance create parking impacts on residential areas by eliminating the Residential Permit program, do not guarantee needed parking spaces for new housing developments, and in fact eliminate parking facilities citywide.
Objective 35: “Meet short-term parking needs in neighborhood shopping districts consistent with preservation of a desirable environment for pedestrians and residents.”
The Proposition and Ordinance provide no short-term parking for retail and community facilities.
Policy 35.1: “Provide convenient on-street parking specifically designed to meet the needs of shoppers dependent upon automobiles.”
The Proposition and Ordinance will eliminate on-street parking and contain no parking adequate for residential and shopping use.

*Planning Code §101.1 (Proposition M) Priority Policies
(1) “That existing neighborhood-serving retail uses be preserved and enhanced.”

The Proposition and Ordinance will create a parking shortage that will adversely impact both residential and neighborhood-serving retail uses.
(4) “That commuter traffic not impede Muni transit service or overburden our streets
or neighborhood parking.”
The Proposition and Ordinance will overburden our streets and neighborhood parking and create additional burdens on Muni transit.

General Plan consistency is required by both CEQA and the Government Code. (footnote #4)

5. City has not complied with the requirements of the Congestion Management law to monitor and prepare a Congestion Deficiency Plan.
Since 1991, the City has failed to comply with the requirements of the Congestion Management law to prepare deficiency plans where traffic congestion is measured at [level of service] LOS F. That failure violates the Government Code §§ 65088, 65089 et seq. City’s failure to create a deficiency and monitoring program plainly violates the law, and City stands to lose gas tax revenue if it does not immediately remedy this deficiency.


For the foregoing and other reasons, the proposed Project, Proposition A and the proposed Ordinance, are unlawful and must not be approved.

DATED: March 18, 2008 __________________________________
Mary Miles

footnote #1:
The “effective date” of a Charter amendment is defined in the San Francisco Charter, §380: “If a majority of the registered San Francisco voters voting on a Charter amendment vote in favor thereof, the Charter amendment shall go into effect once the amendment is accepted and filed by the Secretary of State pursuant to Government Code Section 34450 et seq.”

footnote #2:
Among others, the Ordinance eliminates the following sections of the Traffic Code: 2; 3; 3.2; 3.3; 3.4; 3.5; 3.6.1; 3.7; 3.8; 3.9; 3.10; 3.11; 3.12; 3.13; 3.14; 3.14.1; 3.15; 3.16; 3.17; 3-a; 4; 5, 5.1; 5.2; 7; 9; 11; 11.3; 11.4; 11.5; 11.6; 11.8; 15; 15.1; 16; 26; 27; 28; 28.2; 28.3; 30; 31; 32; 33.1; 34; 38; 40; 44; 48; 49; 80; 84; 86; 90; 91; 94; 96; 96.1; 100; 100.1; 173; 174; 174.1-174.3; 174.01-174.13; 175.01-175-35; 176.01-176.41; 177.02-177.09; 178.02-178.09; 190-196; 201-205; 213-218; 219.3; 301; 302; 303; 304; 305; 306; 307; 308; 308.1-308.6; 310; 312; 313; 315; 316; 317; 401-414; 430-436; 501-506; 600-605; and 700-705.

footnote #3:
City’s proposed Market-Octavia re-zoning legislation also restricts the Residential Parking Permit Program, which provides low-cost street parking for residents of San Francisco neighborhoods. (See, e.g., Market & Octavia Area Plan, Policy 5.4.1, proposing curtailed issuance of permits, limiting the number of permits, restricting times of use, and charging “market rate” parking fees for permits; and “The Market and Octavia Draft Community Improvements Program Document," April 17, 2007, pp. 26-27, proposing implementation of these “reforms.”)

footnote #4:
Even if City had made consistency findings, this Board may not lawfully adopt legislation, findings, or any other action requiring or based on consistency with the San Francisco General Plan, because the City does not have a valid General Plan that complies with the Government Code. (e.g., Gov. Code §§65000 et seq., 65300, 65302; 65860 et seq.) The City’s General Plan does not contain the required elements or misstates their content, including the following examples: (1) The General Plan contains no Land Use Element, perhaps the most important component of any General Plan. (e.g., Gov. Code §65302(a) and (b).); (2) The General Plan’s Housing Element was invalidated by a decision of the Court of Appeal. (San Franciscans for Livable Neighborhoods v. City and County of San Francisco, (2007) unpub. 1st Dist. Case No. A112987, June 22, 2007, review den. October 10, 2007; and see, e.g., Gov. Code §65302(c).); (3) The General Plan’s Transportation Element contains the text of Ordinance 109-05, which was invalidated by Order and Peremptory Writ of the California Superior Court. (Coalition for Adequate Review v. City and County of San Francisco, SF Super.Ct. Case No. 505509, Order, Nov. 7, 2006; Judgment, June 18, 2007; Peremptory Writ of Mandate, July 26, 2007; and see, e.g., Gov. Code §65302(b) and (a)) The City has not removed the invalidated text and unlawfully relies on the invalidated Bicycle Plan project for conclusions and findings on parking, traffic and mitigations on this Project. (4) The General Plan fails to meet the Government Code’s requirement of correlation between its defective Transportation Element and the (nonexistent) Land Use Element. (Gov. Code §65302(b) and (a)) The proposed Project is directly related to these requirements since it affects both land use and transportation.

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