Tuesday, April 21, 2020

When people stay home

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Public comment: Twin Peaks Boulevard project

Two people walking in the car free area of the Twin Peaks Figure 8 Pilot
Mary Miles (SB #230395)
Attorney at Law
for Coalition for Adequate Review
San Francisco, CA 94102

Board of Directors 
San Francisco Municipal Transportation Authority ("MTA")
1 South Van Ness Ave., 7th Floor
San Francisco, CA 94103

DATE: April 20, 2020


This is Public Comment on Agenda Item 10.4 of the April 21, 2020 MTA Board meeting on Permanently Closing Twin Peaks Boulevard to Vehicles Except Bicycles (“the Project”). Please provide a copy of this Comment to each Board member and place a copy in all files on this Item. 

Item 10.4 also proposes a “Finding that Twin Peaks Boulevard, eastern alignment, from Christmas Tree Point Road to the southern end of the ‘Figure 8’ roadway is no longer needed for vehicular traffic pursuant to California Vehicle Code §21101; and approving permanently closing Twin Peaks Boulevard to vehicular traffic exempt[sic] for bicycles and emergency vehicles, and changing the one-way direction of Twin Peaks Boulevard, western alignment, from Christmas Tree Point Road to the northern end of the Figure 8’ roadway to two-way…” (MTAB Agenda, Item 10.4.) 

The Project does not comply with the California Environmental Quality Act ("CEQA"), and it is unconstitutional and preempted. The proposed "finding" is false.

1. This Item Must Be Continued, Because MTA Has Failed To Make Publicly Available The Claimed Categorical Exemption And Supporting Documents, Violating CEQA's Requirement To Provide Public Notice And Necessary Information For Meaningful Public Participation In The Review Process

The Agenda packet on Item 10.4 does not include the referenced "categorical exemption" on this Project, and it has not been available for public viewing on either MTA's web site or the Planning Department's web site.

MTA's anonymous Staff Report, page 8, falsely states that "On April 2, 2020, the San Francisco Planning Department determined (Case No. 2020-003882ENV) that the proposed Twin Peaks Permanent Project is categorically exempt from CEQA" under 14 Cal. Code Regs. ["Guidelines"] §15301, and that the categorical exemption "is on file with the Secretary to the SFMTA Board of Directors, and may be found in the records of the Planning Department at 1650 Mission Street in San Francisco." 

As of this writing, the Planning Department's web site contained NO such categorical exemption, and it is not included in the Agenda Packet. The Planning Department has been closed for several weeks, and that agency has refused to timely respond to a Public Records and Sunshine Ordinance Request, stating it will not comply with those legal disclosure requirements under a local directive on the COVID virus.

The failure to provide the exemption and other environmental documents before this hearing on the Project violates CEQA, which requires the claimed exemption from CEQA to be before this Board and publicly available before this hearing to provide adequate time for meaningful public review and participation in the review process. Further, that environmental document must be included in the Agenda packet with copies distributed to Board members before the meeting. 

Since MTA and Planning have not posted or provided this critical information in the Agenda packet or online, this Board must continue all proceedings on this Project.

2. The Claim Is False And Unsupported That The Twin Peaks Closure Project Is Exempt From CEQA
Since the claimed categorical exemption is unavailable for public review, this Comment cannot include it. This Board must therefore continue this Item until the public has time to review the alleged categorical exemption. The claimed categorical exemption is not included with the Agenda packet nor available online.

The "Pilot Report" shows that MTA collected no meaningful data, even though that was supposedly why it initially claimed an exemption under Guidelines §15306. The claimed Class 6 exemption for a temporary "pilot" project is not transformed into a Class 1 exemption or into an “existing” facility allowing MTA to evade CEQA review. The Class 6 "data" is unsupported and meaningless, and it does not address the significant impacts of the Project. 

Under CEQA, the existing conditions (also called the baseline) is not the “pilot project” created by MTA, but instead is the condition existing before the pilot was created under the claim of “data collection.” The required environmental analysis may not proceed on the false premise that the street’s closure is an “existing condition.” 

Under CEQA, the Project's direct, indirect, and cumulative impacts on existing conditions must be identified and analyzed, and mitigating those impacts is required before Project approval, a process that has not taken place here in violation of CEQA. The failure to accurately set forth existing conditions invalidates any conclusion of no impacts under CEQA.

Further, MTA and Planning may not invoke a Class 1 Categorical Exemption after it has illegally implemented the Project under the pretense of a Class 6 "pilot." Instead, MTA must return the roadway to its original configuration. The existing conditions (baseline) requiring review under CEQA are those before the "pilot" project was implemented. MTA's "pilot" is a transparent strategy to evade lawful review under CEQA. 

The Project is not categorically exempt from CEQA, since it clearly has significant impacts, including but not limited to adverse impacts on public views by denying public access to them. Under CEQA, MTA must prepare an initial study to determine the impacts of the proposed street closure on the environment. The environment protected by CEQA includes all travelers on Twin Peaks Boulevard, including drivers of motor vehicles. The environment includes public views. 

3. The Staff Report And The Pilot Report Are False And Unsupported
The anonymous "reports" in the Agenda Packet consist of a MTA "Staff Report" dated April 15, 2020, and a "Twin Peaks Figure 8 Pilot Project Final Report" dated February 2018. 

MTA admits that Twin Peaks is an "iconic open space landmark, enjoyed by residents living throughout the San Francisco Bay Area as well as by visitors to San Francisco." (Staff Report, page 3.) Indeed, the Twin Peaks promontory that the Project would close to people traveling in motor vehicles is renowned worldwide and is part of San Francisco's "49-mile Scenic Drive." 

MTA, however, states the Project's goal is to eliminate motor vehicle access to the panoramic view of San Francisco from the eastern part of the roadway and to create an exclusive space that only allows "people walking and bicycling to enjoy the San Francisco cityscape view and San Francisco Bay view" by blocking access to motor vehicles. (Staff Report, page 4.) 

An undated "survey" about unnamed bicyclists' wishes to close a public street to the public is not evidence that the street has been abandoned by other travelers. (Pilot Project Final Report p. 13.) 

The Parking conclusions are not credible, because the Report admits its survey did not measure how those pedestrians and others got to the Twin Peaks overlook. (Pilot Project Final Report, p. 19, "Note.") Since access to the eastern part of the street where the scenic overlook is located was blocked to motor vehicles, people obviously could not drive there, resulting in the skewed Report placing them in the "Didn't Drive" bar-graph of the survey. (Id. at pp. 14-21.) 

The Report admits there is no reliable data on safety issues or vehicle speeds. (Pilot Project Final Report, pp. 6,12.) The Report's "vehicle volumes" conclusions are invalid, since the pilot closed Twin Peaks to vehicles, obviously leading to a decline in the public's ability to travel on that public street. (Pilot Project Final Report, pp. 8-11.) 

The obvious purpose of the pilot project was not to collect accurate data but to implement the Project, which unlawfully closes a public street to the public and does not comply with CEQA. 

4. The City Has No Authority To Close A Public Street Or Any Part Of It To The Public, Which Is Unconstitutional And Preempted

MTA provides no legally valid justification for claiming that Twin Peaks Boulevard or any part of it is "no longer needed for vehicular traffic pursuant to California Vehicle Code Section 21101." 

MTA has no authority under Vehicle Code section 21101 or any other law to close part of Twin Peaks Boulevard or any other public street to part of the public. (City of Lafayette v. County of Contra Costa (1979) 91 Cal.App.3d 749, 757; Rumford v. City of Berkeley (1982) 31 Cal.3d 545, 553; Veh. Code §21101.6.

The Board must continue Agenda Item 10.4 until the public has been provided the required information and adequate time necessary for review and meaningful input. 

The Project must be rejected by this Board, because it is not exempt from environmental review under CEQA, and because MTA and the City and County of San Francisco have no authority to close a public street or any part of it to part of the public. 

Therefore, MTA cannot lawfully approve the proposed permanent closing of part of Twin Peaks Boulevard to drivers or approve Agenda Item 10.4.

DATED: April 20, 2020
Mary Miles

Turns out that by closing that street the city created a skate park for skateboarders.

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