Wednesday, October 05, 2011

Herrera: I told the city to do an EIR on the Bicycle Plan

John Murphy asks City Attorney Dennis Herrera about the Bicycle Plan litigation[Later: bike guy Murphy edited his original post and deleted Herrera's admission below]:

"If you had a time machine, and went back to when Rob Anderson sued the city, what would you do differently." He didn't quite get the subtle context, he answered that he would have insisted on an EIR in the first place, I wanted to know how he might have shepherded the process along faster once the suit was in place. He said that he had told the City to do an EIR, but they were so anxious to get the thing started that they took the shortcut.

"Subtle context"---whatever that means---aside, clearly Murphy wasn't up to asking any follow-up questions. After "they"---the mayor? the Board of Supervisors? the Bicycle Coalition?---rejected his sound legal advice to do an EIR on the Bicycle Plan, did Herrera instruct the attorneys handling the litigation to refuse to certify the administrative record that we compiled? (Petitioners in CEQA cases have the right to compile the administrative record to save money.) Did he instruct his attorneys to claim that the San Francisco County Transportation Authority (SFCTA) isn't a city agency and therefore none of their documents should be in the administrative record?

Maybe he didn't decide exactly what the briefs contained, but, based on the record, the attorneys handling the case got the message: take a hard line on everything, make no concessions on anything, stipulate to nothing, even on trivial matters. 

What about how his office handled the litigation after Judge Busch ruled against the city and while the EIR was being done? Did he instruct his attorneys to maintain until the bitter end the fiction that the Bicycle Plan was only the Framework Document and didn't include the Network Document? Of course he did. 

Surely he can't claim that he was unaware that his office tried to get the injunction lifted three times before the EIR was finished and certified by the city and by Judge Busch. Look at the City Attorney's website, and you can see how he pushed the Plan.

From the City Attorney's chronology: 

June 20, 2006: Judge James L. Warren grants petitioners’ request for a preliminary injunction to prohibit the City from implementing projects contained in the Bicycle Plan, finding that they would likely prevail in their argument that the City was required to prepare an EIR for the plan.  

Okay, did Herrera then tell "them" that he was right, that the city is probably going to lose the case, that they should cut their losses and do an EIR on the Bicycle Plan? That would have saved city taxpayers a lot of money. There's no evidence of that from the way his office handled the litigation or from the City Attorney's "Bike Plan Litigation" Timeline. 

August 2006: Municipal Transportation Authority (the successor agency to DPT) conducts a count of the number of bicyclists at 35 locations throughout the City, generally between 5:00 and 6:30 p.m.

Since the litigation was only about doing the legally required environmental review of the Bicycle Plan, what's the bicycle count doing in the litigation timeline? Obviously, throughout the litigation the City Attorney was signaling his support to the Bicycle Coalition and the city's progressive community. Why would Herrera find it necessary to do that? Could it be that he was already thinking about running for mayor and didn't want to antagonize the Bicycle Coalition?

April 29, 2008: Judge Busch grants Herrera’s motion to modify the injunction in part, allowing for safety improvements to intersection of Fell and Masonic.

Herrera takes credit for this achievement, and it turns out that the so-called safety emergency at that intersection was based on a lie, since a subsequent MTA "collisions" report shows that the number of accidents involving cyclists at the intersection has been remarkably steady for years.

Herrera and the MTA conned Judge Busch into allowing them to modify the intersection with a special turn lane and stoplight.

Since those "improvements" were made, by the way, they have made no difference in the number of accidents at the intersection.

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At 11:02 PM, Blogger murphstahoe said...

Rob - I could have talked about this one all day long. I was more interested in his viewpoint on the questions you raise, myself. But we had 15 minutes, and well, we don't have a time machine, and the bike lanes are being built. So there really wasn't much point.

So we pivoted to the Central Subway.

Regardless, I didn't tape the conversation - my description is intentionally vague because I don't want to misrepresent what Herrera actually said. Sorry, it was 6:30 in the AM and I was more interested in riding my bike than being an investigative journalist.

At 9:56 AM, Blogger Rob Anderson said...

Yes, of course for you its cycling uber alles.

You got a scoop with Herrera's admission on the EIR issue. But the way the litigation has been handled from the beginning---after he supposedly gave "them" the proper legal advice---shows that from that point on he was behind the city's obnoxious, money-and-time-wasting strategy once the decision was made to push the Bicycle Plan through the process without any environmental review.

Obviously, the city was assuming no one was going to challenge their CEQA-defying strategy in court. We tried to warn the city during the administrative process, but we were dismissed rather contemptuously by the Planning Commission and the Board of Supervisors.

It was striking how both the Planning Dept. and the City Attorney's office gave the BOS such bad advice at the hearing of our final appeal. It's fair to say they were lying when they told the supervisors that the ambitious Bicycle Plan qualified for a General Rule Exemption under CEQA, which is reserved only for projects that can't possibly have any impact on the environment.

A project that proposes redesigning our streets on behalf of you bike folks, taking away thousands of parking spaces and more than 50 traffic lanes to make bike lanes, obviously could/would have an impact on the city's environment.

Once the injunction was upheld by Judge Busch, the city surely knew it had a losing case on the first phase of the litigation, but they pushed on with it for strictly political reasons, issuing demagogic press release along the way.

That irresponsible strategy endeared City Hall to the Bicycle Coalition and progressives but cost city taxpayers a lot of money. The city had to pay my lawyer for the first phase of the litigation, and it will have to pay her again for defeating the city's three attempts to lift the injunction while the EIR was being done.

The way Herrera handled the Bicycle Plan litigation makes one wonder about other politicized legal issues, like the gay marriage issue. Did he tell Mayor Newsom before he allowed gay couples to get marriage licenses that the city was likely to lose that litigation? One would like to see the email correspondence between the City Attorney and the Mayor in early 2004 before and after registrations began.

(I have no quarrel with gay marriage per se; I only question Newsom's timing. In a presidential election year, why not wait until after November to start that legal process? Why give President Bush a hot-button political issue---which Republicans used effectively---to help him get re-elected?)


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