Monday, April 22, 2013

Scott Wiener's lie about the Bicycle Plan

Since Supervisor Wiener has repeated the falsehood about CEQA and the Bicycle Plan, it's fair to call him a liar. He first made the claim in a Chronicle story (below in italics) last October that the Bicycle Plan litigation was a good example of the city's dysfunctional CEQA system. I blogged about that falsehood at the time. Since he didn't repeat it in the intervening months, I assumed he had second thoughts about using it as an example.

He's using it again in an op-ed in the current issue of the Bay Guardian:

We support CEQA and support the right to appeal projects. What we cannot support is having no firm deadline to file those appeals. We've seen excellent projects, with broad public support, get delayed and have dramatically increased costs because of our bad process. A small group abused CEQA to fight the North Beach Library for years. After the Dolores Park renovation underwent dozens of community meetings and attained broad community support, a single person appealed the project, arguing that the dog areas of the park would lead to childhood obesity. San Francisco's bike plan was delayed for years, costing millions of tax dollars.

That the Bicycle Plan "was delayed for years" was due entirely to the politically-motivated misconduct by the City of San Francisco, not because of any flaw in how the city handles CEQA cases. Dennis Herrera has even belatedly admitted that he told the city---Mayor Newsom? The Board of Supervisors?---that they would have to do an EIR on the ambitious, 500-page Bicycle Plan, but his advice was rejected.

There was nothing wrong with the process we went through in appealing the city's exemption of the ambitious Bicycle Plan from any environmental review. The people making the politically motivated decisions were the primary flaw in the process.

The Planning Commission unanimously okayed making the first volume of the Plan---the Framework Document---part of the General Plan with little discussion and no debate (The city tried to hide the second volume over at the SFCTA).

We then appealed that decision to the Board of Supervisors, which also passed it unanimously with little discussion and no debate.

There was no issue/problem with either deadlines or "last-minute" appeals. The process played out over a period of months. We were only shocked at how little thought or discussion by the Planning Commission or the supervisors took place on what was clearly a major project that would remove dozens of traffic lanes and thousands of parking spaces on busy city streets to make bike lanes.

And, seldom mentioned in the ongoing CEQA discussion: appellants have to exhaust their "administrative remedies"---that is, appeal the decision to the supervisors, which is the last part of the administrative process---before they can take it to court. Our attorney was aware of that and told us that, given what happened at the Planning Commission hearing, it was likely that eventually we either would have to litigate or give up on the issue.

During that final hearing before the supervisors, representatives from both the Planning Dept. and the City Attorney's office lied to the Board of Supervisors about the legal issues for political reasons. City Hall and the Bicycle Coalition simply thought they could get away with not complying with the most important environmental law in the State of California.

Once Judge Warren issued the original injunction against the city and the Bicycle Plan, the City Attorney knew he was fighting a losing legal battle. You can't get an injunction against a project unless the judge is convinced that you're going to prevail when the hearing is held. The City Attorney acknowledges this reality in its chronology on the litigation:

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.

Judge Busch not only kept the injunction in place, but he then ruled entirely in our favor after the hearing on the merits was held.

Instead of simply obeying the law and doing the environmental review Judge Busch ordered, the city continued to try to get the injunction lifted even as it was working on the EIR! Judge Busch was a little exasperated at this, as the city filed three unsuccessful motions to lift the injunction before the EIR was finished.

The city acted this way---in the process wasting a lot of taxpayers' money---for purely political reasons. City Attorney Dennis Herrera was already planning to run for mayor, and he didn't want to antagonize the Bicycle Coalition, which was holding rallies in front of City Hall accusing the city of dragging its feet on the EIR.

If a lawyer in private practice had involved a client in all this unnecessary litigation, he would be guilty of malpractice. But the City Attorney doesn't have to worry about that, since the city's taxpayers were the only losers in this charade, as they had to pay our lawyer for her time spent on the litigation.

All the Bicycle Plan litigation shows is that our "progressive" City Hall is willing to ignore the law for political reasons, not that the CEQA process is flawed or commonly used by obstructionists to delay good projects.

Stall tactic: In San Francisco, it's surprising if new construction projects aren't delayed for years by endless appeals, frivolous or legitimate.

Supervisor Scott Wiener introduced legislation Tuesday that would prevent last-minute appeals of projects undergoing a California Environmental Quality Act Review (CEQA). He said that currently CEQA decisions are being appealed months and years after the Planning Department issues its decision, which leads to more delays and cost increases.

Wiener cited the North Beach Library project and the city's bicycle plan as two popular projects that have been subject to long delays by late appeals involving environmental review.

"CEQA serves many important purposes, but at times it goes beyond its intended purpose and has become a tool to disrupt, delay and at times significantly increase the cost of projects, including very important public projects," he said.

His legislation would require appeals to be filed with the Board of Supervisors within 15 to 30 days of the first project approval, instead of the final project approval. He also said more robust public notice of CEQA decisions would occur under his legislation.
- Neal J. Riley

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