2009 2008 2007 2006 2005 2004 2003 2002 2001 2000 1999 1998 Resolution to end the Bike Plan law-suit
Introduced by District 11 Supervisor Gerardo Sandoval
Whereas, bicycling is a form of speech, political expression and public assembly; and the right to move is an essential aspect of liberty recognized from before the founding of our great City; and,
Whereas, the City and County of San Francisco is under a continuing obligation to review the operation of its public works; and private property should not be taken, or damaged for public use without just compensation; and,
Whereas, bicycling in San Francisco is in some places unduly hazardous; and the state-mandated City Bicycle Plan is intended to improve bicycle safety and transportation; and,
Whereas, we the City Board of Supervisors have a right to protect the City’s people from harm and abate public nuisances; and San Francisco bicyclists, as encouraged roadway users, have a right to move in reasonable safety; and,
Whereas, we the City Board of Supervisors have determined that bicyclists are continuing to be hit on City streets and that the record of such crashes, injuries and death shows substantial evidence of emergency; and,
Whereas, the Bike Plan EIR has been repeatedly and unreasonably delayed; and there is no substantial evidence of a potentially significant impact caused by the Bike Plan; and now therefore, be it,
Resolved, upon full inquiry, the San Francisco Board of Supervisors finds that the San Francisco Bicycle Plan will not have a significant impact upon the environment; and, be it,
Resolved, the San Francisco Board of Supervisors further finds that the record of bicyclists injured and killed in crashes on City streets over the last two years shows substantial evidence of an emergency. And,
Further resolved, that the Board of Supervisors requests that the City Attorney not oppose 3rd party intervention in this matter and that the City Attorney not oppose the recovery of the costs of such an action.
Whereas keyed to facts and authority
1) Whereas, bicycling is a form of speech, political expression and public assembly; and the right to move is an essential aspect of liberty recognized from before the founding of our great City;
2) Whereas, the City and County of San Francisco is under a continuing obligation to review the operation of its public works; and private property should not be taken, or damaged for public use without just compensation;
3) Whereas, bicycling in San Francisco is in some places unduly hazardous because of inadequate bicycle facilities; and the state-mandated City Bicycle Plan is intended to improve bicycle safety and transportation;
4) Whereas, we the City Board of Supervisors have a right to protect our people from harm and abate public nuisances; and San Francisco bicyclists, as encouraged roadway users, have a right to move in reasonable safety;
5) Whereas, we the City Board of Supervisors have determined that bicyclists are continuing to be hit on City streets and that the record of such crashes, injuries and death shows substantial evidence of emergency;
6) Whereas, the Bike Plan EIR has been repeatedly and unreasonably delayed; and there is no substantial evidence of a potentially significant impact caused by the Bike Plan;
7) Resolved, that upon full inquiry, the San Francisco Board of Supervisors finds that the San Francisco Bicycle Plan will not have a significant impact upon the environment;
8) Resolved, upon full inquiry, the San Francisco Board of Supervisors further finds that the record of bicyclists injured and killed in crashes on City streets over the last two years shows substantial evidence of emergency;
9) Further resolved, that the Board of Supervisors requests that the City Attorney not oppose 3rd party intervention in this matter and that the City Attorney not oppose the recovery of the costs of such an action.
Facts and Authority
1) Several commonly known facts support this assertion in San Francisco. The Bicycle Advisory Committee advises the Supervisors in matters of Bicycle transportation. Local private bicycle organizations are active in City politics. Bicyclists have assembled in mass in the City every last Friday of every month for more than ten years.
The United States Supreme Court traces the right to move to the Magna Carta. Freedom of movement is basic in our scheme of values. “Outside of plainly harmful conduct every American is left to shape his own life as he thinks best, do what he pleases, go where he pleases.” (Kent v. Dulles (1958) 357 U.S. 116, 126). “The right [to move] finds no explicit mention in the constitution. The reason it has been suggested is that a right so elementary was conceived from the beginning” (Shapiro v. Thompson, 394 U.S. 618, 631).
2) The California Supreme Court has directly linked a taking by inverse condemnation to harm caused by dangerous street designs. “Consequently, where property is involved, a public entity is under a continuing obligation to review the design of its public works in order to avoid liability. No insuperable additional burden is placed upon such an entity by extending this duty to cases of person injury” (Baldwin v. State (1972) 6 Cal.3d, 424, 438). “Private property may be taken or damaged for a public use only when just compensation, ascertained by a jury, unless waived, has first been paid to, or into court for, the owner” (Art. 1 §19, Cal. Const.)
3) At Fell and Masonic streets and the Panhandle Bikeway, The Board of Supervisors found that “Collisions and near collisions between bicyclists, pedestrians and motorists occur almost regularly” (Fell/Masonic Resolution). The City Bike Plan is authorized and funded by Section 890 of the Streets and Highways code which reads in part: “It is the intent of the Legislature, in enacting this article, to establish a bicycle transportation system… [with] the physical safety of the bicyclist and bicyclist's property as a major planning component.”
4) Under the taking/inverse condemnation reasoning set forth in (2) the City has the responsibility to keep its streets reasonably safe. As such, the City also has the right to fulfill this responsibility. In California anything that “interfere[s] with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance” (Civil Code §3479). The California Constitution gives the City the police power to make and enforce local laws. “A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws” (Cal. Const., Article 11 § 7).
Further, in a previous resolution, the Supervisors unanimously found that that “LOS…measures auto delay at intersections and ignores all transit, pedestrian and bicycle safety.” And the Supervisors resolved that “LOS analysis alone is not an appropriate metric for assessing environmental impacts and for analyzing projects that may improve overall environmental quality in conformance with Section 16.102 of the Charter” (Board of Supervisors Resolution no. 0233-06). Section 16.102 of the City Charter provides that “[d]ecisions regarding the use of limited street and sidewalk space shall encourage the use of public rights of way by pedestrians bicyclists and public transit and shall strive to reduce traffic and improve public health and safety” and that “[b]icycling shall be promoted by encouraging safe streets for riding.”
5) In a recent hearing, the Land –Use Committee heard public comment from people who have been hit while the EIR/injunction stops safety improvements. Substantial evidence “means enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might be reached.” (Cal Beach Advocates v. City of Solana Beach (2002) 103 Cal. App. 4th 529, 536-537.) “Emergency means a sudden, unexpected occurrence, involving, a clear and imminent danger, demanding immediate action to prevent or mitigate loss of, or damage to, life, health property or other essential services. (Pub. Resources Code §21080, subd. (b)(4).) “Emergency includes such occurrences as fire, flood, earthquake or other soil or geologic movements as well as such occurrences as riot, accident or sabotage.” (Pub. Resources Code §21060.3.) Some ten years of City crash records and voluminous public comment indicates that bicycling In San Francisco is in some places unreasonably dangerous.
6) The Bike Plan EIR has been delayed multiple times. Multiple City Supervisors and the Mayor have expressed concern over how long the “study” is taking to complete.
7) No substantial evidence supports the assertion that the Bike Plan may have a significant impact on the environment. The City has a right to keep its people and its streets reasonably safe. Individual bicyclists have a right to speak and move freely.
8) In, Running Fence v. Sonoma County the project sponsor intervened and sought a writ of prohibition to end the law-suit and injunction because the County Board of Supervisors found no substantial evidence of significant impact (Running Fence v. Sonoma County, (1975) 51 Cal. App.3d 400)
Need more information?
Gerardo Sandoval, District 11 Supervisor, gerardo.sandoval@sfgov.org
Casey Allen, District 11 City Bike Adviser, caseyallensf@yahoo.com
Andy Thornley, Freedom Director, SF Bicycle Corporation, andy@sfbike.org
Dave Snyder, Justice Coordinator, The Society for Planning and Unending Research, dsnyder@spur.org
Marc Solomon, City Hall, marc@cybre.net
Greg Hayes, Bicyclist at Large, gaze5@yahoo.com
MTA/Planning MEA letter, From District 11,
Request for substantial evidence of potentially significant impact.
The Land-Use committee recently heard public testimony about the physical effect of the delayed Bike Plan on the City’s bicyclists. Numerous San Francisco bicyclists came to the hearing. Many of these people reported having been hit and sustained injuries wile riding their bicycles on City streets during the Bike plan EIR. Streets and Highways Code section 890, the statute which authorizes the Bicycle Plan, says the plan is intended to improve the safety of bicycle transportation. Finally, it has become clear, that the Bike Plan EIR has been repeatedly and unreasonably delayed.
For these reasons, District 11 asks that the MTA/Planning MEA present any substantial evidence of a potentially significant environmental impact that the Bike Plan may have in writing before the full Board meeting of ____________. District 11 also asks that any substantial evidence of impact be presented at this meeting.
Thanks,
District 11
