Friday, February 15, 2013

Court rejects city's Petition for Rehearing

The Court of Appeal has rejected the city's Petition for a Rehearing on the Bicycle Plan case. The city must now decide whether it wants to appeal the decision to the state Supreme Court. 
Below are some excerpts from the the court's decision against the city in Anderson v. City and County of San Francisco, following up on this post:

The City tells us that “No mitigation measures identified in the EIR were found infeasible, and thus findings of infeasibility were not required.” The City also believes that “Anderson appears confused by this issue.” But any confusion seems to be in the City’s position.

The City appears to agree with the trial court, maintaining that specific findings of infeasibility were not necessary because the alternatives were rejected with a statement of overriding considerations. Yet such an approach cannot be reconciled with the plain language of section 21081...
This statutory language is predicated on the existence of significant effects on the environment—not the rejection of alternatives. The express language requires “one or more...findings with respect to each significant effect.” (Italics added.) Every such finding for each significant impact is a so-called infeasibility finding. (See County of San Diego v. Grossmont-Cuyamaca Community College Dist. (2006) 141 Cal.App.4th 86, 100.)The leading treatise states plainly: “One or more of these findings must be made for each significant environmental impact identified in the EIR.” (2 Practice Under the California Environmental Quality Act, supra, § 17.16, p. 813, italics added.) If any doubt lingers, it is dispelled by various Guidelines...

The revised CEQA findings adopted by the Board of Supervisors (see fn. 15, ante) adequately discuss the perceived failings of the alternatives recommended for rejection. For example, rejection of the No Project alternative was recommended because it would “fail to increase bicycle safety” in conformity with the Bicycle Plan, and “fail to close gaps in the existing bicycle network, which surveys have shown is a major impediment to additional increases in bicycle mode share in San Francisco.” “Project-Level Alternatives A and B” got a thumbs down because they “would not benefit from the...refinements and modifications” made to the Preferred Project and “would not improve bicycle network functioning and safety to a greater extent than would be accomplished by the Preferred Project.”

But the boilerplate conclusion just quoted is inadequate to establish a valid finding of infeasibility. It does not mention, or incorporate by reference, the statement of overriding considerations. And the formulation “economic, legal, social, technological, and other considerations set forth herein and elsewhere in the record” (italics added) could hardly be more inclusive—or less precise. As findings on the alternatives, each is “conclusionary and too general.” (Village Laguna of Laguna Beach, Inc. v. Board of Supervisors (1982) 134 Cal.App.3d 1022, 1034.) “[M]erely rejecting the project alternative was insufficient.” (Resource Defense Fund v. Local Agency Formation Com. (1987) 191 Cal.App.3d 886, 897.) The Board of Supervisors did not identify which of these “considerations” was found applicable and why it is accepted as persuasive. (See Guidelines, § 15093(b) [“the agency shall state in writing the specific reasons to support its action”].) In short, “the board...did not explain why it found the alternative[s]...infeasible.” (Village Laguna of Laguna Beach, Inc. v. Board of Supervisors, supra, at p. 1034.) 

While the decision maker’s explanation or rationale for its decision can be “brief” (Guidelines, § 15091(a)), “mere conclusory findings...are inadequate.” (Environmental Protection & Information Center v. California Dept. of Forestry & Fish Protection (2008) 44 Cal.4th 459, 516-517; see 25A Miller & Starr California Real Estate (3d ed. 2007) § 25A:17, p. 25A-96 [“When there are adverse environmental effects, a mere statement that alternatives are ‘...infeasible’ is not sufficient”].) 

The Board of Supervisors’ findings rejecting the alternatives set out in the EIR do not measure up.

The situation with respect to significant environmental impacts that cannot be mitigated is better, but still flawed...
...Thus, as to these impacts, and the rejection of the alternatives, there is nothing establishing the written balance struck by the Board in weighing the benefits of the project against “its unavoidable environmental risks,” “based on the final EIR and or other information in the record.” (Sierra Club v. Contra Costa County (1992) 10 Cal.App.4th 1212, 1222; Guidelines § 15093(a), (b).) “Under [section 21081], a decisionmaking agency is prohibited from approving a project for which significant environmental effects have been identified unless it makes specific findings about alternatives and mitigation measures. [Citations.] The requirement ensures there is evidence of the public agency’s actual consideration of alternatives and mitigation measures, and reveals to citizens the analytical process by which the public agency arrived at its decision.” (Mountain Lion Foundation v. Fish & Game Com., supra, 16 Cal.4th 105, 134, italics added.)
This failure by the Board of Supervisors to proceed in the manner required by CEQA establishes a prejudicial abuse of discretion...The case must therefore be returned to the trial court with directions to direct the Board of Supervisors to correct this omission.

The “Order Overruling Petitioners’ Objections to Respondent City and County of San Francisco’s Return to Writ of Mandate” is reversed, and the cause is remanded to the trial court with directions to modify the writ of mandate (or issue a new writ if necessary) requiring the San Francisco Board of Supervisors to comply with CEQA as stated in this opinion.  The parties shall bear their respective costs of appeal.

J. Richman

We concur:

Kline, P.J.

Lambden, J.


Portland, San Francisco, and "dummies in suits"

"Layers of planners, managers, and dopey rail projects." Sounds familiar! Jack Bog could be talking about SF. But on a per mile basis---at a billion dollars a mile---our Central Subway surely qualifies as the "biggest waste of money in the history of mass transit in this country." The California high-speed rail project would take that prize, but I still don't believe it's going to be built:
Tri-Met's general manager, Neal McFarlane, has been making the rounds trying to sell his story that the bus drivers' union is what's breaking his insolvent transit agency. We've expressed disappointment that the local mainstream media has run stories that allow McFarlane to make this case without also giving opposing views anything near equal time. Some of the other side has now been aired---the union's side---in at least one later piece, in the Oregonian. But there's still been precious little discussion of our main gripe, which is that Tri-Met has trashed its bread-and-butter operations, buses, for excessive layers of "planners" and managers, and for dopey rail projects. It's hard for us to believe that professional writers can interview McFarlane without crucifying him for the epically failed WES heavy rail project, of which he was in charge. That has turned out to be the biggest waste of money in the history of Tri-Met, and perhaps in the history of mass transit in this country. Then there's the empty east side Portland streetcar, and now the Mystery Train to Milwaukie, and next, the light-rail deck on the new bridge to the 'Couv---a deck that most folks in that suburb don't seem to want...
...When Tri-Met's hack board and its bungling management start talking rationally about terminating WES, slimming down their own house, and scrapping all their grandiose train plans for the future, maybe someone will listen to their whining about the unions. In the meantime, we find ourselves rooting for the bus drivers; although they are fat and greedy, they're far less of the problem than the dummies in the suits.