Whereas the Board of Supervisors resolved that the intersection has become dangerous under changed physical conditions by finding that design changes made to the intersection in 2005, improved the safety of the intersection, but have not fully solved the safety problem (Fell Masonic resolution no.__ p.1:22-23.). The resolution further identifies the danger, finding that the & fast moving left-hand lane on Fell Street turn[s] directly into bicyclists and pedestrians right of way ( p. 1:15-16) And, the resolution specifies the anticipated individual emergencies that result from the danger, Collisions and near collisions between bicyclists, pedestrians and motorists occur almost regularly (p.1:19-20). Finally, the resolution, urges the Municipal Transit Agency to regulate the movement of traffic at Masonic and Fell Streets by providing for a dedicated traffic signal phase crossing Masonic for bicyclists and pedestrians using the panhandle pathway& (p. 2:4-7), and

Whereas substantial precedent exists to justify an emergency exemption from the terms of the Bike Plan Injunction (see attached argument), and

Whereas there is substantial evidence of continued threats to public safet, namely to pedestrians and bicyclist, and

Whereas the combination of evidence and public notice places the City of San Francisco at substantial legal liability,

Therefore be it resolved that the San Francisco Bicycle Advisory Committee urges the City Attorney to review the evidence, precedent, and will of the Board of Supervisors in requesting an emergency exemption, allowing an immediate design change to mitigate the obvious and imminent danger of this intersection to pedestrians and bicyclists.

The argument presented to the San Francisco Bicycle Advisory Committee on January 24, 2008:

Greg Hayes--------------------------------------------------------------------- gaze@yahoo.com
This is public comment from District 5, concerning a local intersection, given to District Supervisor Ross Mirkarimi and the San Francisco Bicycle Advisory Committee. It is not legal advice. It was not written by an attorney.

Substantial evidence supports the emergency exemption
The Supervisors' unanimous resolution, an alarming crash history and actual notice from the community is substantial evidence of the emergency situation Fell and Masonic. 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 v. City of Salono 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.)

In Cal Beach, a sandstone cliff was likely to collapse because El Nino waves had eroded its base. Such a collapse could injure persons on the beach below and damage homes on the bluff above (Id. at p. 538.) Nearby sections of the coastal bluff had already collapsed and the notch at the base of the cliff had deepened to about 12 feet (Id. at p. 534.)

The City of Salono Beach ( Salono ) filed an emergency exemption to CEQA review for the project to stabilize the cliff's base. Cal Beach, a local non-profit corporation, petitioned to set aside the exemption and sought an injunction to require an EIR for Salono's shoreline and coastal bluff protection ordinance. In response, Salono successfully moved for summary judgment. On appeal, Cal Beach argued that no emergency existed because no sudden, unexpected occurrence required immediate action (Id. at pp. 535-536.)

Disagreeing, the appellate court found that, The condition of beach erosion is composed of many small occurrences& Certainly the collapse of the Torrey sandstone base of the bluff, like an earthquake or forest fire, is an occurrence: it is something that happens. Moreover, it is sudden in that it happens all at once (Id. at p. 538.) In Webster's Dictionary, Sudden' can be defined as changing character or angle all at once' (Ibid.) Further, the court found that if all emergencies had to be unexpected, then & projects can never be designed to prevent emergencies (Ibid.)

The testimony of two engineers who determined the cliff would soon collapse was also considered to be substantial evidence of an emergency. The professional opinion of these two engineers, both of whom have substantial experience in coastal stabilization projects and coastal erosion, provides substantial evidence that the condition of the bluff required immediate action (Id. at p. 538.) Finally, the court found that the exemption did not require a public hearing, and determined that even if a public hearing had been required, the exempted project, the cliff stabilization, had already been approved by the Salono City Council in a public meeting, as required by the local Municipal Code (Id. at p. 541.)

In contrast, in Western Municipal Water District of Riverside County v. The Superior Court of San Bernadino County (1986) 187 Cal App. 3d. 1104, an emergency exemption was set aside because the agency did not support its decision with substantial evidence. In Western, the San Bernadino Water District ( San Bernadino ) filed an emergency exemption for a project to lower the area's water table in order to prevent liquefaction. Liquefaction occurs when an earthquake, forces groundwater through sandy, or cohesionless, soil to the surface, where it creates a top-layer of virtual quicksand into which overlying structures may topple (Id. at p.1109.) The risk of liquefaction increases when the area's groundwater is high. To mitigate the perceived danger, San Bernadino wanted to lower the water level by operating two dewatering wells . The wells would have pumped groundwater from the aquifer beneath the City of San Bernadino and then discharged it into the Santa Ana River channel (Id. at p. 1107.) The notice explained the reason for the emergency exemption in a single sentence. The trial court affirmed the exemption, but referred to it as extremely sketchy (Id. at p. 1109.)

Western Municipal Water District ( Western ) appealed arguing that San Bernadino did not consider alternatives to the two wells and ignored its own consultant's warning that the wells may have potentially significant environmental effects. Further, Western pointed to evidence showing that contaminated plumes of groundwater& might be drawn into the domestic water supplies if the wells were drilled and operated. Western claimed that San Bernadino simply decided to proceed under the emergency exemption, thereby avoiding the CEQA requirement of an EIR (Ibid.)

The court found that at a minimum, the administrative record must disclose substantial evidence of every element of the contested exemption as defined in section 21060.03. (Id. at p. 1114). San Bernadino's only pertinent data regarding imminence were agency and magazine, articles, a consultant's report and a paper of the U.S. Geological Survey. These offered generalized assumptions or statistical probabilities that were very low. The consultant report's statistics, for example, were & mathematically equivalent to an annual earthquake likelihood of 1.4% (Id. at p. 1115). Our review discloses no substantial evidence that liquefaction is an imminent danger, or that it demands immediate action (Id. at p. 1114)

At Fell/Masonic, the Supervisors resolved that the intersection has become dangerous under changed physical conditions by finding that design changes made to the intersection in 2005, improved the safety of the intersection, but have not fully solved the safety problem (Fell Masonic resolution no.__ p.1:22-23.) The resolution further identifies the danger, finding that the & fast moving left-hand lane on Fell Street turn[s] directly into bicyclists and pedestrians right of way ( p. 1:15-16) And, the resolution specifies the anticipated individual emergencies that result from the danger, Collisions and near collisions between bicyclists, pedestrians and motorists occur almost regularly (p.1:19-20). Finally, the resolution, urges the Municipal Transit Agency to regulate the movement of traffic at Masonic and Fell Streets by providing for a dedicated traffic signal phase crossing Masonic for bicyclists and pedestrians using the panhandle pathway& (p. 2:4-7) [This requested signalization change is the exempted project .]

An imminent crash is no less of an emergency than an imminent cliff collapse. Both events are sudden, unexpected occurrences, involving, a clear and imminent danger, demanding immediate action to prevent or mitigate loss of, or damage to, life, health and property. A crash, like a cliff collapse, is an occurrence: it is something that happens . A crash is also sudden , because it, changes character or angle all at once A person's body, for example, changes character, suddenly, when it is impacted and injured. Consider a bicyclist riding into the Fell/Masonic intersection with the right of way. The person's body is healthy and intact entering the intersection. Suddenly, unexpectedly, the crash occurs. Lying there on the asphalt, unconscious after the crash, the body's character has physically changed. For example, the body's bones: when bones break, they are broken (FN 1.)

To argue that the traffic signalization change does not mitigate an emergency is to argue that the City can't act to mitigate the known danger because the City knows about the danger - an assertion directly contrary to Cal Beach that also borders on abject absurdity. Section 21080, subdivision (b) (4) exempts not only projects that mitigate the effects of an emergency but also projects that prevent emergencies (Cal Beach, 103 Cal. App. 4th 529, supra at p. 537.)

Further, the emergency at Fell/Masonic is very different from the emergency in Western. In Western, the agency's decision was not supported by substantial evidence. Nothing in the record indicated the imminence of an earthquake. Intense controversy existed concerning the potential pollution of the domestic water supply. The reason for the exemption was explained in a single sentence. At Fell/Masonic, substantial evidence supports the emergency exemption. The Supervisor resolved that the intersection is dangerous and requested that its design be changed. The resolution passed unanimously. And there is no known opposition to mitigating the emergency.

Finally, if the City ignores its own findings of danger and emergency the City will be exposed to liability. The intersection has lost design immunity under changed physical conditions and notice. Once the entity has notice that the plan or design, under changed physical conditions, has produced a dangerous condition of public property, it must act reasonably to correct or alleviate the hazard (Baldwin v. State (1972) 6 Cal.3d 424, 434) (Gov. Code 830.6.) The City is under an ongoing obligation to review the operation of its public works (Id. at p. 439) (California Constitution, Article 1 Section 9.) We find no insuperable burden to be created by extending this duty to cases of personal injury (Ibid.)
The rationale behind design immunity is that juries should not be allowed to second guess discretionary, legislative, street design decisions (Id. at p. 432). In contrast, here at Fell/Masonic, the Supervisors directly requested the design change. The Fell/Masonic resolution identifies the dangerous condition, specifically indicates how physical conditions have changed, and requests that the design be changed in order to mitigate the danger.

Now, it is not reasonable for any City agency to fail to make the design change (Gov. Code § 835.4.) Now, the City must remedy the dangerous condition, or, if it cannot remedy it, the City must post warnings of the danger (Cornette v. Dept. of Transportation (2001) 26 Cal. 4th 63, 79)
At Fell/Masonic, the Supervisors clearly and unanimously identified the emergency threat to public safety, illustrated its imminence and requested that it be mitigated. The emergency is composed of multiple individual crashes, or occurrences; all of which cause damage to life, health and property; all of which are sudden and unexpected. The danger is obvious. Future crashes are imminent. Failing to address the known danger, failing to mitigate the declared emergency, exposes the City to liability. Substantial evidence supports the emergency exemption.

Foot note 1: Recovering from a fractured hip, a broken nose and abrasions from head to toe, [injured cyclist] is now healthy enough to ride his bike, but the scars remind him of the terror of crossing the notorious intersection. S.F. bike group seeks new lights at Fell, Masonic , The San Francisco Examiner, June 27, 2007.
Coming attractions:
The intersection is not protected by design immunity

Greg Hayes----------------------------------January 2008-----------------------------HAZE