Tuesday, March 03, 2015

The Polk Street bike project and the law

Mary Miles (SB #230395)
Attorney at Law
for Coalition for Adequate Review
San Francisco, CA 94102

Edward Reiskin, Director
Roberta Boomer, Board Secretary
and Members of the Board of Directors of the Municipal Transportation Agency
#1 South Van Ness Avenue, 7th Floor
San Francisco, CA 94103

DATE: March 3, 2015


This is Public Comment on Agenda Item 12, the "Polk Streetscape Project" (“Polk Project” or “the Project”), on the MTA Board's March 3, 2015 Agenda. Under the Brown Act and CEQA, you are legally obligated to accept and consider this Comment and to place it in all public files on the Project. Therefore, please assure that this Comment has been distributed to all members of the MTA Board and placed in all applicable files on the Project. 

The “categorical exemptions” invoked do not apply to the Project, and therefore you may not lawfully approve the Project or any part of it as proposed, since such approval will violate the California Environmental Quality Act (“CEQA”) (Pub. Res. Code §§21000 et seq.)

The Project proposes to reduce traffic and turning capacity on Polk and other Streets by eliminating existing parking lanes, reducing traffic lanes and installing obstructions to traffic flow and turning on this busy commercial corridor.

The unusual and highly inconvenient scheduling of this hearing before the MTA Board after 3:00 p.m., on a day with an extraordinarily long MTA Board Agenda shows the MTA Board’s contempt for the public and the significant impacts of the Project. The hearing should be continued to a date and time when the public can be heard without waiting hours for hearings on unrelated matters, and where the public’s comments will receive the Board’s full and serious attention. The hearing precludes public attendance by many people, including all those people who have to be at work. Combined with the short notice, that scheduling deprives the public of the opportunity to meaningfully participate in the environmental review and administrative proceedings on the Project.

On January 15, 2015, the San Francisco Planning Department issued a “Certificate of Determination of Exemption from Environmental Review” (“Exemption”) claiming that the Project was categorically exempt under Classes 1, 2, and 4 of CEQA, invoking 14 Cal. Code Regs. [“Guidelines”] §§ 15301, 15302, and 15304. None of those categorical exemptions apply to this Project. Further, the significant cumulative impacts on traffic, transit, parking, loading, and air quality caused by the Van Ness BRT project one block away, and by the CPMC Project at Van Ness Avenue at Geary Boulevard, make the Polk Project not categorically exempt. (Guidelines §15300.2) Both of those Projects also present “unusual circumstances” precluding categorical exemption of the Polk Project.

1. The Polk Project Does Not Fit Within The Categorical Exemptions Invoked.

a. The Project Is Not A Minor Change to an Existing Right-of-Way. (Guidelines § 15301.)
The existing rights-of-way on Polk are two unobstructed traffic lanes for mixed uses including vehicles and bicycles in both directions, and two parking lanes on the east and west sides of Polk Street. Vehicles are allowed to turn left and right onto and off of Polk Street at each intersection. The Project would remove a critical traffic lane on Polk Street between McAllister Street and Golden Gate Avenue, one of the most congested areas in San Francisco. These are not minor changes, and there is no existing right-of-way for raised “cycletrack” bicycle lanes for exclusive use of bicyclists on Polk Street. 

The Exemption falsely states that the physical changes to the existing street are to an “existing right-of-way,” that “no more than negligible increase in use of the street would result,” that “All changes would occur within the existing street and sidewalk right-of-way,” and that “The proposed project would therefore be appropriately exempt under Class 1.” (Exemption, p. 18.) In fact, the existing “right-of-way” consists of two traffic lanes for shared use of vehicles and bicycles, two parking lanes, and no separated, raised, bicycle lanes for exclusive use of bicycles. 

The Project does not make minor changes to these existing rights-of-way, but instead completely removes parking lanes and one traffic lane, reduces existing traffic capacity, and eliminates existing turning capacity. The Project removes parking on both sides of Polk Street, including a full parking lane, to create two wide, raised “cycletrack” bicycle lanes for exclusive use of bicyclists. Turning and traffic capacity are reduced by physical obstructions including bulbouts, bus bulbs and prohibited turning. This is a complete change of use of the existing right-of-way.

b. The Project Is Not a Minor Change to an “Existing” Bicycle Facility. (Guidelines § 15304.) 
There are no existing raised, separated, exclusive use bicycle lanes on Polk Street. The proposed “cycle tracks” and the elimination of parking and traffic capacity to accommodate them therefore do not fall within a Class 4 categorical exemption.

c. The Project’s Sewer Replacement Is Unrelated to the Permanent Changes to the Existing Right-of-Way Proposed by the Project, and the Exemption Invoked for Sewer Repair Does Not Apply to the Entire Project. (Guidelines §15302)

The sewer and water main construction are unrelated and incidental to the Project, and their inclusion is irrelevant to the “Polk Streetscape Project.”

2. The Polk Streetscape Project Is Not Categorically Exempt, Because Polk Street And The Entire Project Area Will Be Drastically Affected by Significant Cumulative Impacts From the Van Ness BRT Project and the CPMC Project.
The Van Ness BRT Project will remove at least two travel lanes and hundreds of parking spaces, and will eliminate turning pockets on Van Ness Avenue, one block from Polk Street. The Van Ness BRT EIR states that traffic congestion impacts on Van Ness Avenue will be “mitigated” by diverting thousands of vehicles to five parallel streets, including Polk Street, which is substantial evidence of significant cumulative impacts on traffic, transit, air quality, and noise on Polk Street. The large CPMC project at Van Ness Avenue and Geary Boulevard will also generate thousands of vehicle trips, adding to the significant cumulative traffic, parking, air quality, noise, and safety impacts on Polk Street. A categorical exemption is inapplicable where, as here, there are significant cumulative impacts.

3. The Polk Streetscape Project Is Not Categorically Exempt, Because The Vastly Increased Congestion Due to Diversion of Traffic and Parking Elimination Resulting From the Van Ness BRT Project and the CPMC Project Are Unusual Circumstances.
The Van Ness BRT Project will remove at least two travel lanes and hundreds of parking spaces on Van Ness Avenue, one block from Polk Street. The Van Ness BRT EIR stated as “mitigation” for its impacts on traffic that thousands of vehicles would be diverted to parallel streets, including Polk Street, which is substantial evidence of an unusual circumstance due to the large increase in traffic that will result and the proximity of Van Ness Avenue to Polk Street. The same is true of the massive removal of parking on Van Ness Avenue, which will result in direct and secondary impacts on surrounding streets including Polk Street.

Thousands of additional vehicles diverted to Polk Street from the Van Ness BRT project, as well as from the CPMC project at Van Ness Avenue and Geary Boulevard, will surely cause additional direct and cumulative impacts on traffic, transit, parking, air quality, noise, and safety, and are unusual circumstances presenting an exception to any categorical exemption of the Polk Street Project. (Guidelines §15300.2.) 

4. The “Exemption from Environmental Review” Fails to Accurately State Existing Traffic and Parking Conditions On Polk and Surrounding Streets, and Fails to Account for Lane and Parking Elimination on Van Ness Avenue Due to the Van Ness BRT Project.
The January 15, 2015 Exemption document misstates and omits accurate traffic counts in violation of CEQA, and is thus useless for identifying or mitigating the Project’s impacts. The document includes no traffic counts on Polk or any other streets in the Project area. The omission of this critical baseline information invalidates the Exemption’s claim of no significant impacts on traffic, transit, and air quality. 

The Exemption document further claims to have analyzed Level of Service (with no actual traffic volume counts) only for the PM peak hour from 5 to 6 p.m. (Exemption, p.11.) In fact, Polk Street also experiences significant traffic congestion during the a.m. peak hours and additional p.m. peak hours with people commuting to and from the Civic Center. The “cumulative” analysis is similarly flawed and invalid, particularly since it fails to include the diversion of traffic to Polk and other streets from the elimination of at least two traffic lanes and parking on Van Ness Avenue (U.S. Highway 101) due to the Van Ness BRT Project, which proposes to divert up to 15,000 vehicles per day due to lane elimination, and will eliminate several hundred parking spaces on Van Ness Avenue, one block from Polk Street. Also omitted from the Exemption document is any mention of the large CPMC Project at Van Ness Avenue and Geary Boulevard, which will generate thousands of additional vehicle trips.

The misleading Exemption document also fails to accurately assess existing parking conditions in the Project area. The Exemption notes that the Polk Project would eliminate “up to 250 parking spaces” on Polk Street (Exemption, p.16), but fails to acknowledge that the Van Ness BRT will also eliminate several hundred more parking spaces in the Project area, resulting in a drastic shortage of parking throughout the area. The 129 parking spaces in the parking garage at 1399 Bush Street are often filled, and does not mitigate the street parking loss at that intersection or the greater Project area.

The Exemption’s rubber-stamped mantra that “parking deficits are considered [by some unnamed person] to be social effects, rather than impacts on the physical environment…” is not a valid legal justification for this Project. (Exemption p.16.) In fact, direct and secondary impacts due to parking elimination are significant impacts on the environment, traffic, transit, air quality, safety, and noise caused by increased congestion, and those impacts must be analyzed and mitigated in an Environmental Impact Report (“EIR”). The Exemption’s ludicrous claim (p.16) that environmental review is made adequate by “assuming that all drivers would attempt to find parking at or near the project site and then seek parking farther away if convenient parking is unavailable” is not an analysis but an irresponsible refusal to comply with CEQA.

5. There Is No Analysis of the Project’s Impacts on Air Quality and GHG Emissions.
In spite of the Project’s obvious significant impacts on traffic congestion, the Exemption document fails to analyze any air quality or greenhouse gas impacts from the Project and its operation, but only claims that there will be no impacts on air quality from its “construction.” There is no baseline statement of existing air quality conditions, no analysis of the Project’s direct and cumulative impacts on air quality, and only an unsupported conclusion that construction of the Project will not exceed “BAAQMD pollutant thresholds.”

6. The Claims of Existing Safety Hazards are Unsubstantiated and False.
MTA’s presentation makes unsubstantiated and false claims that a large number of collisions have occurred in an unspecified five-year period at unspecified Polk Street intersections, though those alleged accident records are not in any publicly available city documents. The unsupported safety claims about Polk Street have only emerged with the City’s advocacy of its Polk Project. Without specific evidence, including dates, locations, and evidence of fault, those claims are meaningless.

For the foregoing reasons, the MTA Board may not lawfully approve the proposed “traffic and parking modifications associated with the Polk Streetscape Project” at Agenda Item 12, since such approval would violate CEQA.

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