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Rebuttal in support of appeal of 13th Street bike project

Mary Miles (SB #230395)
Attorney at Law
for Coalition for Adequate Review

Angela Calvillo, Clerk of the Board, and 
San Francisco Board of Supervisors
Room 244, City Hall
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102

DATE: June 26, 2017

RE: BOS File No. 170638



Appellant hereby submits this Rebuttal to the June 19, 2017 San Francisco ("City") "Planning Department Response to the Appeal of Categorical Exemption for the SFMTA -13th Street Eastbound Bicycle Facility Project" ("Planning's Response"). Please distribute a copy of this Rebuttal to every Supervisor and place a copy in all applicable Project files. 

Planning's Response evades the impacts of the Project by misstating the facts, the law under CEQA, Appellant's argument, and fails to show that the Project is categorically exempt from the requirements of CEQA. 

Planning's Response also evades the fact that MTA illegally implemented the Project in plain violation of CEQA, before the public had an opportunity to appeal its determination and MTA's approval to this Board. (Pub. Res. Code [PRC"] §21151(c); San Francisco Administrative Code §§31.16(b)(3) [other departments "shall not carry out…the project" until the "CEQA decision is affirmed by the Board [of Supervisors];" 31.16(b)(5) [the public may submit materials to the Board of Supervisors prior to scheduled hearing on an appeal]; and 31.16(e) "The date the project shall be considered finally approved shall occur no earlier than either the expiration date of the appeal period if no appeal is filed, or the date the Board affirms the CEQA decision, if the CEQA decision is appealed." 



Planning's Response relies on factual misstatements and misrepresentations of Appellant's positions, including the following examples.

A. Planning persists With Its Falsehood That The Project Removes Only One Eastbound Traffic Lane, When In Fact City's Own Documents Show That The Project Removes Two Of Three Eastbound Lanes On 13th Street

Contrary to the falsehoods in Planning's Response (e.g., pp. 2, 6, 7), the Project clearly will remove two traffic lanes, not one, by eliminating two through lanes on 13th Street from Harrison to Bryant Street, and installing two forced left turn lanes at the 13th and Bryant Street intersection. (Appellant's Brief in Support of Appeal, June 16, 2017 ["Appellant's Brief"], Ex. A [Exemption], p. 3 and "Figure 3 at p.10"].) Forced left turn lanes are not through traffic lanes. 

It is well-established and common sense that where traffic lanes are eliminated the resulting queuing of traffic will cause delays at other intersections. Thus, City's "road diet" that removes two traffic lanes on eastbound 13th Street will cause traffic backups, congestion throughout and beyond the Project area, including intersections at 13th and South Van Ness Avenue and other major intersections where thousands of vehicles seek freeway access, major shopping areas, downtown, the ballpark, and elsewhere. 

Planning's Response (p. 6) disingenuously admits that "between Harrison and Bryant streets, or for approximately one-third of the area covered by the project, the project would remove two eastbound travel lanes." (Planning's Response, p. 7, emphasis added.) But Planning then contradicts that plain fact, falsely claiming that a forced left-turn lane would equal a through traffic lane. Planning's Response completely ignores the impact of removing nearly all of the parking on 13th Street, which will also cause traffic circling and diversion to find parking. 

Elsewhere, City simply lies, claiming that the Project reduces traffic capacity on 13th Street by only "one travel lane." (Planning's Response, pp. 2, 6, 7) City claims that Appellant "misunderstands the project" (Planning's Response, p. 6) However, City's own description and diagrams of the Project clearly show that it removes two traffic lanes, not "one." (Appellant's Brief, Ex. A [Exemption], p. 3 and Figure 3 at p. 10) 

Bottlenecking traffic on this heavily traveled corridor will obviously cause direct, indirect, and cumulative impacts throughout the Project area.

B. Planning's Existing Conditions Data, Including Traffic Volumes, Are Unsupported And Conflict With MTA's Traffic Data, Or Are Entirely Absent

City now advances its unsupported claims on traffic volumes that vary significantly from MTA's previous traffic volume counts, and it again fails to provide the dates, times, sites, and who conducted the traffic counts, or to describe the methodology used.[1]

In short, Planning's Response provides no substantial evidence to support its claim on traffic volumes at three intersections that it allegedly measured. Further, the Project area includes the major intersection of 13th Street and South Van Ness Avenue, which is entirely omitted from Planning's alleged traffic volume counts. 

C. Contrary To Planning's Response, Its Exemption Document Admits That The Project May Have Significant Impacts 

Planning's Exemption document plainly states that the Project will have significant impacts. Further, since that document admits that reducing roadway capacity "may result in increased delay at some locations, and therefore increased emissions of criteria pollutants or ozone precursors in those locations." (Appellant's Brief, Ex. A, p. 7-8) As already stated, where City's own documents admit a project's potential significant impacts, the Project cannot be categorically exempt. (Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster ["Azusa"] (1997) 52 Cal.App.4th 1165, 1199)

D. City Failed To Provide Notice Or Information On Its Environmental Determination 

Contrary to Planning's Response (pp.4-5), City's March 17, 2017 alleged "public hearing" before MTA's Sustainable Streets Division of MTA included no information or discussion of its exemption determination. In fact, Planning's exemption determination was not made until April 10, 2017, and was not publicly available online at that time. 

After rushing its requested exemption through a non-public process, MTA then illegally issued a work order to implement the Project on April 11, 2017, before its scheduled approval hearing on April 18, 2017. (Appellant's Brief, Ex. D) MTA posted an agenda for the April 18, 2017 hearing, but its staff report did not include the Planning Department's exemption or any documents supporting it. 

Neither the exemption document nor MTA's staff memo to Planning were available on Planning's website before the April 18, 2017 hearing and had to be obtained through an Immediate Disclosure Request under City's Sunshine Ordinance. Requested records supporting the exemption determination were not produced after two Immediate Disclosure Requests. (See also footnote 1) The public was therefore denied the opportunity for informed participation in MTA's approval process, violating CEQA's basic requirement.

The MTA Board ignored Appellant's comment letter submitted before the April 18, 2017 hearing, and it also failed to include environmental review of the Project as one of the subjects of its hearing as required by CEQA Guidelines section 15202(b). 


A. City's Admission That The Project Will Have Significant Impacts Preclude And Negate Its Categorical Exemption 

City admits that the congestion caused by the Project will have significant impacts on air quality. (Appellant's Brief, Ex. A, p. 7-8) City may not determine the Project exempt with that admission. (Azusa, supra, 52 Cal.App.4th at p.1199)

B. City May Not Lawfully Remove Traffic Impacts From Its Impacts Analyses Under CEQA; Planning Commission Resolution 19579 Is Preempted, Illegal, and Void on its Face 

Planning's Response declares that "the department does not use automobile delay as a consideration in assessing impacts on the environment pursuant to CEQA," and that such analysis is "outdated and incorrect." (Planning's Response, p.8) Planning claims that City's Planning Commission adopted Resolution 19579 to "not use automobile delay as a consideration" in assessing such impacts. (Id. at p.7) 

City's claim and Planning Commission Resolution 19579 are invalid on their face, since they are contrary to CEQA's requirement to analyze and mitigate all impacts on the environment, including those on traffic, congestion, and parking. Resolution 19579 is preempted and conflicts with PRC §21099, which provides that the state Office of Planning and Research ("OPR") is "to prepare proposed revisions" to existing CEQA Guidelines and submit them to the state for certification and adoption." (PRC §21099) 

In fact, the OPR has not certified or adopted revised CEQA Guidelines. Moreover, even if certified and adopted, such Guidelines would only apply prospectively, meaning after such revisions were certified and adopted. (Guidelines §15007; PRC §21099(b)(2).) 

Even if such Guidelines revisions are certified and adopted by OPR, that would not remove City's burden to comply with CEQA's requirement to analyze and mitigate transportation impacts. PRC section 21099(b) states that upon certification and adoption of Guidelines revisions, "automobile delay, as described solely by level of service or similar measures of vehicular capacity or traffic congestion shall not be considered a significant impact on the environment." (PRC §21099(b)[emphasis added].) 

Thus, PRC §21099 explicitly does require that automobile delay must be considered as an impact but not as solely measured by level of service. Rather, the state may create additional and other criteria for measuring automobile delay as a significant transportation impact. (Id.) PRC section 21099 further does not eliminate the criterion of automobile delay, but states that "automobile delay, as described solely by level of service or similar measures of vehicular capacity or traffic congestion, shall not be considered a significant impact…" (PRC §21099(b)(2).)

Nothing in PRC section 21099, or elsewhere in CEQA, authorizes either the state or the City and County of San Francisco to claim that automobile delay is not a significant impact. In fact, PRC section 21099 makes clear that "The methodology established by these guidelines shall not create a presumption that a project will not result in significant impacts related to air quality, noise, safety, or any other impact associated with transportation." (PRC §21099(b)(3) [emphasis added] PRC section 21099 explicitly states that it "does not relieve a public agency of the requirement to analyze a project's potentially significant transportation impacts related to air quality, noise, safety, or any other impact associated with transportation." (Id.) 

City's mistaken claim that it need not analyze automobile delay as a transportation impact violates CEQA, and Resolution 19579, claimed as authority for doing so, is preempted, void, and in conflict with state law.

C. City's Defective Baseline Corrupts The Impacts Determination

Planning's Response provides no substantiation for its claimed measurement of traffic volumes at three intersections affected by the Project. Further, those intersections fail to include the major intersection of 13th Street and South Van Ness Avenue. As noted, Planning's Response has provided no substantiation for its alleged traffic counts. 

The baseline existing conditions for determining impacts must be supported by substantial evidence, including accurate data, not City's admittedly mistaken and incomplete counts. (Planning Response, p. 6, fn. 1) Impacts cannot be accurately assessed without knowing when traffic counts were made, particularly since eastbound corridors like 13th Street experience heavy AM peak hour commuter traffic headed to downtown and the freeway.

Planning's Response (p. 6) falsely claims that in conducting the alleged counts it complied with City's Transportation Impact Analysis Guidelines ("TIAG"). The TIAG clearly requires substantiated traffic volume measurements and analysis of traffic delay and congestion, which Planning's Response omits and calls "outdated and incorrect." (Planning's Response, p.7) Planning does not address the marked disparity between its alleged traffic counts in 2015 or 2016, since MTA's previous counts show much heavier traffic on 13th and Mission Streets. 

Planning's Response repeats the falsehood that the Project removes only one of three eastbound traffic lanes on 13th Street. (Planning's Response, p. 6) [footnote 2] That falsehood should negate any approval of Planning's claimed exemption. The Project would clearly remove two through traffic lanes on 13th Street, not one. (Appellant's Brief, Ex. A, p. 3, and Figure 3 at p. 10)

Even if Planning's unsubstantiated and contradictory claims were supported, 1,012 "passenger vehicles" would have to merge into one lane during peak hours with this Project. City fails to include trucks, shuttle and other buses, and motorcycles, which would also have to merge into the one remaining lane on 13th Street. 

Planning claims that the one remaining through lane (which is shared with a right turn lane) on 13th Street between Harrison and Bryant Streets has a capacity of 1,900 "passenger cars per hour." (Planning's Response, p. 7) However, Planning's dubious claim fails to include or analyze the backup and queuing that would occur at other intersections besides the three where it claims it counted "passenger vehicles" but got the year wrong. (Planning's Response, pp. 6-7; Appellant's Brief, Ex. A, pp. 2-3, 5, and Figures.) [footnote 3] 

Planning's alleged traffic count omits the largest intersection in the Project area: 13th and South Van Ness Avenue. The lack of accurate and complete baseline data invalidates City's conclusion of no impacts. (e.g., Poet, LLC. v. State Air Resources Bd. (2017) 10 Cal.App.5th 764,797 [agency's failure to justify use of correct baseline is an abuse of discretion and invalidates the impacts analysis].)

D. City Violates CEQA By Continuing To Omit Cumulative Impacts Analysis 

Planning's speculation that traffic will increase by only 150 cars in 2040 is unsupported and absurd on its face. Common sense and the City's population and vehicle growth, including "ride-sharing," lead to a contrary conclusion. 

City's formulaic computer exercise to reach that 150-car growth in 2040 figure was based on applying an unsubstantiated "projected growth in vehicle traffic volumes" of "15%" to Planning's alleged traffic counts to conclude that "the project would not result in a substantial reduction in available roadway capacity along eastbound 13th Street such that it would lead to a substantial vehicular diversion to other nearby streets in the vicinity, which in turn could substantially affect cumulative transit travel time." (Planning's Response, p. 8 [emphasis added] 

However, transit travel time is irrelevant to Planning's conclusion, since there is no transit service on 13th Street at the three intersections where City reached the dubious 150-more-cars-in-2040 figure. Nor is there any support for Planning's claim that the Project will not result in diverting traffic to nearby streets. 

MTA's Sustainable Streets Division announced recently that it intends to remove still more parking on 13th Street in the eastbound frontage lane between South Van Ness Avenue and Folsom Street, which provides access and parking for several businesses, to install a "Bikeshare station." (Ex. G, attached hereto) That action would add to the Project's significant reduction of parking in this commercial area that would have cumulative impacts on traffic, air quality, and parking under CEQA's general definitions as well as the definition in Guidelines §15300.2(b). 

The complete absence of substantial evidence or accurate data and analysis in Planning's exemption document, and City's omission of similar past, pending, and future projects in the area, invalidates its conclusion of no cumulative impacts on traffic, air quality, GHG, or energy consumption.

City has failed to support a preliminary analysis of the cumulative impacts of the Project on traffic, air quality, GHG, energy consumption, parking, and public safety that had to precede its claim of exemption. 

E. City's "Vision Zero" Fiction Is Unsupported And Irrelevant To The CEQA Determination Of Impacts 

City claims that its "Vision Zero High Injury Network is based upon empirical data and robust scientific methodology." (Planning's Response, p. 9) Such data has not been provided with City's Response, and City's position is therefore unsupported. 

Further, the data provided to this Commenter shows only seven, not 57 as claimed, bicycle collisions on 13th Street from May 31, 2012 to May 31, 2016, of which several were caused by the bicyclists themselves. That data is scientifically insignificant. The exaggeration is certainly "robust," but there is no substantial evidence for City's claims of the "urgency of safety improvements." (Planning's Response, p. 2)

Further, for the reasons already stated, the "Vision Zero" claims are irrelevant to the required impacts analysis as a matter of law. (Appellant's Brief, pp. 5-6) 

F. City's Claim That the Project Would Not Result In Air Quality, GHG, Energy Consumption, Public Safety (Including Emergency Vehicle Access), And Other Impacts Are False. 

City mistakenly implies that the preliminary review for significant impacts required by CEQA before an agency declares a project exempt must be supported by substantial evidence presented by the public. (Planning's Response, p. 9) In fact, the burden is on City, not the public, to support its preliminary review. (Save Our Big Trees v. City of Santa Cruz ["Save Our Big Trees"] (2015) 241 Cal.App.4th 694, 705

Indeed, as City admits, the public did not have the opportunity to participate in the preliminary review. (Planning's Response, p. 5)

Planning admits that "[t]he exemption certificate did not assess greenhouse gas emissions, energy consumption, or noise impacts," in addition to not assessing traffic or parking impacts. (Planning's Response, p. 9) Instead, Planning states, again with no supporting evidence, that it need not evaluate those issues because its staff believed that "such an assessment was unnecessary because...it was determined that the project would not result in substantial diversion of vehicular travel in the project area and the project's construction activities were minor." (Planning's Response, p. 10) 

Contrary to that mistaken claim, City was required to conduct that assessment in a preliminary review to determine whether a categorical exemption applied to the Project. (Guidelines, §§15060, 15061) 

Indeed, City's own exemption document admits that reducing roadway capacity "may result in increased delay at some locations, and therefore increased emissions of criteria pollutants or ozone precursors in those locations." (Appellant's Brief, Ex. A, p. 7-8.) Where City's own documents admit a Project's potential significant impacts, the Project cannot be categorically exempt. (Azusa, supra, 52 Cal.App.4th at p. 1199


For the reasons already stated in Appellant's Brief, this Project is not categorically exempt. (Appellant's Brief, pp. 7-10) 

City misstates the law on both of its invoked categorical exemptions. As admitted by the exemption document, there are no "existing" bicycle lanes on 13th Street. (Appellant's Brief, Ex. A, p. 4) For that reason, neither the Guidelines section 15301(c) nor 15304(h) exemptions apply to this Project. 

City also fails to support its claimed categorical exemption with substantial evidence in the record. An agency's claim of categorical exemption will not be upheld without substantial evidence in the agency's record supporting that determination (e.g., Save Our Big Trees, supra, 241 Cal.App.4th at p. 705). The burden is on the agency, not Appellant, to support its exemption. (Id.) Indeed, as City admits, the public does not participate in that determination. (Planning's Response, p. 4) 

Planning's Response (p.10) claims: "City streets have typically been used for a variety of purposes," and that this claim is supported by City's "Transit First" policy. However, City has failed to show that the Project fits within the Guidelines §15301 "existing facilities" exemption. 

Further, as already noted, the Project clearly changes the use of 13th Street by removing traffic lanes for all modes of transportation, removing parking, and installing separated bicycle lanes that are not usable for any mode of transportation except bicycling. That change of use removes this Project from the scope of the "existing facilities" exemption, as previously shown. (Appellant's Brief, p. 8-9)

Planning's Response also misstates the scope of the Guidelines section 15304 exemption, which applies only to minor alterations "in the condition of land, water, and/or vegetation…" (Guidelines §15304 [emphasis added] The example at Section 15304(h) includes "[t]he creation of bicycle lanes on existing rights-of-way." 

However, that example does not apply here, because there are no existing bicycle lanes or any existing exclusive bicycle right-of-way on eastbound 13th Street, and the proposed Project does not create a bicycle lane in an "existing" right-of-way. Rather, the project creates a bicycle facility for exclusive use of bicyclists by removing existing street parking and traffic lanes. (e.g., California Farm Bureau Fed'n. v. California Wildlife Conserv. Bd. (2006) 143 Cal.App.4th 173, 192 [Project to "improve habitat" where there was no existing habitat was not within section 15304 exemption, and was not a "minor" alteration]; (Save Our Carmel River v. Monterey Peninsula Water Mgmt. Dist. (2006) 141 Cal.App.4th 677, 698 [rejecting Class 2 exemption where city failed to show that a proposed "replacement structure…will have substantially the same purpose and capacity as the replaced structure"].) 

The Project is not a "minor alteration" but is a major alteration affecting at least 1,012 vehicles per hour at just one intersection, with significant impacts on traffic, air quality, GHG, energy consumption, parking, and public safety, including emergency vehicle access. 

On top of the Project's removal of nearly all street parking on 13th Street, MTA's Sustainable Streets Division plans to remove still more parking on 13th Street in the eastbound frontage lane serving several businesses on 13th Street near Folsom Street to install a private "Bikeshare station." (Ex. G) Those spaces and that frontage area are used to access businesses there. MTA's proposed expansion of use by bicycles invalidates the categorical exemption. The successive reduction of parking will also have significant cumulative impacts on parking, traffic, and air quality, triggering the section 15300.2 cumulative impacts exception to any categorical exemption.


CEQA's most fundamental mandate to allow the public meaningful voice and informed participation in environmental review has been violated by MTA's illegal implementation of the Project without allowing the public the opportunity to appeal its action to this Board. This Board should not condone or encourage such illegal action and instead should require MTA to remove its changes to 13th Street, both to comply with the law and to prevent its further violation by MTA.


The proposed 13th Street Project may have significant impacts on the environment, and it is not exempt from CEQA. This Board should grant this Appeal, set aside the Planning Department's April 10, 2017 Categorical Exemption and the MTA Board's April 18, 2017 Project approval, and order the MTA to immediately remove all physical changes and restore 13th Street and the surrounding area to the way they were before MTA's illegal implementation of the Project, pending further environmental review in compliance with CEQA.

[1] Two Immediate Disclosure Requests, on April 26 and June 20, 2017, were made for Planning's supporting data, including its alleged traffic counts. Both were effectively denied, with Planning failing to provide the alleged counts. (Ex. F attached hereto) 

[2] Planning's Response admits that "between Harrison and Bryant streets, or for approximately one-third of the area covered by the project, the project would remove two eastbound travel lanes," but disingenuously claims that "two travel lanes would still exist, one of which would be a dedicated left turn lane," and that "Phase II of the project would add a second left turn lane, which would create a total of three eastbound travel lanes on 13th Street, the same as existing conditions." (Planning's Response, p. 6) In fact, as plainly evident from City's own documents, the Project will remove two through traffic lanes on 13th Street between Harrison and Bryant Streets, leaving only one through traffic lane. (Appellant's Brief, Ex. A [Exemption], p. 3, and Figure 3 at p. 10) 

[3] City claims that "SFMTA provided the department with traffic counts collected for three intersections within the project limits: 13th and Folsom streets, 13th and Harrison streets, and 11th, 13th, Bryant, and Division streets…during the p.m. peak hour." (Planning Response, p.6) However, City's Project also includes the major intersection of 13th Street and South Van Ness Avenue. (Appellant's Brief, Ex. A)

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