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The hijacking of the Miller Avenue Streetscape Plan - Part II

As the letter by Edward Yates explains, the City’s claim of a 15061(b)(3) CEQA exemption and the speedy approval of the Miller Avenue Parkway “Pilot Project” was illegal. What is worse is that this seems to have become a pattern in Mill Valley. Our city seems intent on pushing the limits of the law as far as they can, basically daring the public to challenge them.

In January of 2016, the Mill Valley Planning Department attempted to use the same 15061(b)(3) guideline to claim categorical exemption from CEQA review for their proposed Mill Valley Multi-Family, Mixed Used Zoning ordinance. CVP quickly pointed out that this was nonsensical and in that instance, the City backed off. So, why was it that this time, when we pointed out the same fallacious reasoning, the City charged forward in spite of it?

Could it be that in the 2016 situation, the City knew that many months of public hearings lay ahead, which provided CVP with ample time to retain experts, do independent studies and mount a solid legal argument? Could it be that in this case, the City knew that by springing the Pilot Project proposal on the unsuspecting public in the dead of summer and having a quick sequence of back to back hearings, they made that window of opportunity much more difficult?

Such an endeavor would have taken careful coordination and planning.

We’ve been here before

In March of 2007, Friends of Mill Valley (FoMV) was formed by a small group of individuals dissatisfied by the City Council’s dismissals of their concerns about traffic congestion, environmental impacts and the urbanization of Mill Valley under the proposed Miller Avenue Precise Plan. From the outset, FoMV was labeled a misinformed, fringe “minority.”

Eight months later, when FoMV’s mailing list had exceeded 1,000 residents, three sitting council members were voted out of office and the Miller Avenue Precise Plan bit the dust. Current council members might want to consider that history has a way of repeating itself.

The Pilot Project public hearings

The City of Mill Valley held two back-to-back hearings this summer on the Miller Avenue Parkway “Pilot Project,” ostensibly to consider public input and to discuss the proposal to reduce the traffic capacity in the Parkway section of Miller Avenue by 50 percent, from two lanes of traffic each way to one traffic lane each way (from Millwood Street to Willow Street), while adding parallel parking along the curb.

Please keep in mind that both the approved Miller Avenue Streetscape Plan and the proposed Pilot Project included a Class II bike lane that met accepted safety standards (Dept. of Transportation). Not having a bike lane at all has never been in question. You’d hardly have known that from attending the hearings or listening to the comments of the majority of council members. The Pilot Project question was framed by its supporting council members as a battle between evil motorists and the threatened children of Mill Valley.

As noted in Part I, some months before the hearings the City had temporarily striped the Parkway section of Miller Avenue to have one traffic lane in each direction, a buffered bike lane and curbside parallel parking. The public was told that this was being done to add parking spaces (along the curb) to replace spaces lost in the Main Street Area (Willow St. to Reed St.), during the construction period. The public was assured this was only going to remain during construction and then the street would be returned to two lanes in each direction design. [1]

So, how did this go from temporary remedy to Pilot Project? Since the City had only given the public proper notice of the Pilot Project in its Staff Report a few days before the July 17th hearing, how was this project’s development and approval accomplished within such a tight timeframe? Typically, something like this would take months just in the planning stage, with discussions beginning at the Planning Commission.

How was it that Moulton Peters, Sloan and McEntee had prepared statements that were so harmonious, allowing the Pilot Project approval to move to a vote with so little debate?

A coincidence?

The Pilot Project approval was unusual in other ways, too. Council members have repeatedly said they are not supposed to discuss proposals outside of the public hearings or carry on seriatim hearings amongst each other [re: The Brown Act]. City Council members are also typically loath to respond to inquiries on a proposal in its formative stages, because they claim they can’t comment intelligently about it until it is technically “before them” and presented at an open public hearing.

In this case, however, our Public Records Act (PRA) document record shows that this was not the case.

The August 14 decision-making hearing

The August 14th hearing began with pronouncements of wanting to hear public input. But, the email records CVP obtained suggest that the die was cast long before the opening gavel hit the dais and no amount of public testimony or new information would have changed that.

There was little explanation added to what was talked about at the July 17th hearing. Jim McCann presented the Pilot Project in general terms and noted that petitions had been submitted on both sides of the issue, for and against the Pilot Project. He cheerfully characterized the petitions as “a good thing” because it showed “the community is engaged.” But, he inferred that they were essentially inconsequential because they offset each other.

McCann also described them as “community generated,” but in the case of the petitions supporting the plan, the documents we received in response to our Public Records Act request showed that was a bit of hyperbole.

In addition, the signatures on the petitions against the Pilot Project (which were created by Mill Valley residents and included almost 900 City of Mill Valley voters) had been vetted for authenticity. The signatures on the petitions for the Pilot Project (which numbered less than a third of that) had not been vetted and included many individuals who were not Mill Valley residents. In fact, neither of the promoters of the two supporting petitions lives or votes in the City of Mill Valley and one doesn't even live in Marin County.

Yet another curiosity was that although the petitions supporting the Pilot Project were noted in the Staff Report, the petitions opposing it were not noted, nor were they attachments to that Staff Report, nor were copies of the opposing petition and its summary totals available on the public documents table the night of the hearing, even though they had been delivered to the city days before. In fact, if you had not followed the issue carefully, you would barely have known opposing petitions existed.

Council members Moulton Peters and Sloan dismissed the petitions opposing the Pilot Project, inferring that some of the wording was “misleading” and unnecessarily alarming. Yet, they readily accepted that the petition supporting the Pilot Project, by the Marin County Bicycle Coalition, was sensationally titled URGENT ALERT: Miller Ave Improvements Under Attack ... AGAIN!, in gigantic bold letters.

It is worth noting that the claims of “broad” community support for the Pilot Project was not substantiated by the Staff Report for the July 17, 2017 hearing, which reported that

Staff reached out to a group of 84 community and neighborhood association leaders by email requesting feedback about the roadway configuration. Staff received 7 responses, with 3 in favor of keeping one lane and 4 preferring the Parkway be returned to two lanes (one neighborhood group had mixed opinions).

This survey result went unmentioned at the August 14th hearing.

Public comments and rebuttals

Public comments were met with decidedly different reactions depending on how much they conflicted with the majority's agenda. Comments that supported the Pilot Project proposal were met with reassuring nods and smiles by Moulton Peters, Sloan and McEntee, while comments opposed to the plan were met by those same council members with downcast eyes and long faces: the kind you see children make when they’re told play time is over.

Mayor Jessica Sloan was emphatic that "Safety has to always be our number one consideration whenever we are doing anything in our town." While all of us care about safety for all Mill Valley residents, young and old (as explained in detail in our letter of August 6, 2017), this disregards that fact that her duty is to enforce the principles of the General Plan, which does not make that holding, particularly when it relates to such a complex decision.

Vice Mayor Stephanie Moulton Peters doubled down on safety and claimed the moral high ground by suggesting that she had been our city's champion for children’s safety. She used this to justify her continuing anti-driving mantra, saying that “This is the place [Mill Valley] to get people out of their cars. “

This statement is a particularly strange for a number of reasons.

First, because no one cited any actual evidence (police records, statistical studies, etc.) that as designed, the Streetscape Plan for the Parkway posed a threat to children’s safety, notwithstanding anecdotal public comments at the hearing about being “scared by a car the other day” or how “someone’s mother’s friend was almost hit once.”

Second, because their opinions failed to consider that Mill Valley has so little public transportation. Almost 80 percent of our heads of households must drive to work or public transportation connections outside of Mill Valley, and according to the City’s most recent publications (e.g., Mill Valley BPAC Draft Plan 2017.08.24) only 5 percent of our workforce lives in Mill Valley.

Moulton Peters and Sloan also emphasized the importance of “traffic calming,” a euphemism for forcing traffic to move slower. Although obedience to speed limits on all our streets has been discussed for years, this urgency to reduce vehicular speeds in the Parkway, in particular, was completely new and had never been on the agenda during the entire 17 years of Miller Avenue planning. If anything, the concept had always been to move traffic more efficiently on Miller Avenue to alleviate the pressures on Blithedale Avenue and Triangle neighborhood cut-through.

Summarizing her politically motivated decision, Moulton Peters summed up her comments resulting in reduced traffic capacity by saying, “Hey, this is what I do.”

McEntee for her part, smiled through it all, offered nothing substantive, and then read her lines, recapping what Stephanie and Jessica had already stated.

Nothing that council members McCauley or Wickham brought up was even acknowledged much less debated. Even testimony and letters by former elected officials and long standing members of the various Streetscape committees were summarily dismissed.

All in all, it was an impressive performance of “teamwork” by staff, the city manager and the council members in favor of the Pilot Project. One had to wonder if this decisive coordination was truly spontaneous, as it was presented to be and as the law requires (the Brown Act prohibits coordinating decisions prior to public hearings).

An ethical question

I spoke during the public comment period and pointed out to Vice Mayor Moulton Peters that the initial documents we had received from our Public Records Act request suggested that considerable effort had been made by several city council members, behind the scenes in order to sway the opinions of the public, prior to these hearings. I commented that I had thought our elected representatives were there to consider all sides before making a decision, rather than making a decision and then selling it to the public.

I asked the council to consider whether this was legal or ethical behavior.

It was telling that as soon as public comment time was over, Moulton Peters turned to the City Attorney and asked if her lobbying behind the scenes was “legal.” Once assured that in this particular instance she could legally get away with that, neither she nor any of her colleagues had any interest in addressing the ethical question.

What is “safety?”

What I said in my September 15, 2017 article bears repeating. There should be no doubt in anyone’s mind that all Mill Valley residents care deeply about the safety of children and it is offensive for council members to posit this concern as something they can claim ownership of.

Decisions about what is or is not safe are highly dependent upon all the circumstances in each particular instance. One has to strike a balance between the safety for pedestrians, bicyclists and drivers as well as the overall public safety impacts on everyone else, from traffic congestion and air pollution and the evacuation consequences in the event of a catastrophic fire, earthquake or other emergency.

What is safer for one group of users may not be safer for all. These decisions are best made based on statistical evidence such as traffic accident logs and pollution analysis, not political agendas or anecdotal recollections.

Yes, children on bikes are a very high priority. But, with respect to the approved Streetscape Plan vs the Pilot Project, is it really safer for children to be riding in the middle of the street, with cars shooting in and out of parking spaces on one side and traffic lanes on the other side, instead of having them riding securely next to a sidewalk, which acts as a safe haven?

What is really at stake here anyway?

These are the facts. The overall width of the Miller Avenue Parkway right of way as it’s been built is 26 feet wide or less at certain pinch points near Millwood Street.

The Pilot Project provides for one 11’ wide traffic lane, a 5’-6” wide bicycle lane with a 2’-0” painted buffer area and a 7’-6” wide parallel parking area along the curb. The approved Miller Avenue Streetscape Plan provided for two 10’-6” traffic lanes and a 5’-0” bicycle lane along the curb, with no buffer. However, with the modest adjustment suggested by community leader John Palmer, the two traffic lanes can be narrowed to be 10’ wide (the same as the lanes on the Golden Gate Bridge), resulting in a 5’-0” wide bike lane with a 1’ buffer.

The difference then is a 24” buffer versus a 12” buffer. Both a 5’ and a 5’-6” wide bicycle lanes qualify as a Class II bicycle lane.

Now let’s look at the parallel parking. Our city’s parking regulations call for a minimum width for “off street” parallel parking of 9’ from the curb. Technically, we do not have an ordinance for parallel parking that applies to Miller Avenue. That said, consider that those ubiquitous, brown UPS delivery trucks are more than 8’ wide and some SUV’s are almost 7’ wide, so our Mill Valley 9’ wide parallel parking guideline is reasonable. In San Francisco, for example, an 8’ wide parallel parking space is the minimum.

Why then are the new parallel parking spaces in the Parkway section of Miller Avenue only 7’-6” wide? This means that for all practical purposes most of the parallel parked cars and their side mirrors will be intruding into the bicycle lane. The 5’-6” bicycle lane will be more like 5’ of actual usable width. If we really care about safety and utility, the parking should be 8' wide. Then, either the bike lane or the buffer would be reduced by 6" (a 5' bike lane or an 18" wide buffer).

So, the rationale for this entire Pilot Project plan rests on the claim that a few more inches of buffer space is dramatically safer?

Is there any statistical evidence whatsoever that this would significantly improve the safety of bicycle users? At the same time, however, there is considerable evidence and a lot of common sense that says reducing our main arterial from two traffic lanes to one traffic lane in each direction will have a significant impact on traffic congestion, particularly during peak hours.

As it stands, our entire community is now being asked to suffer the consequences of increased traffic congestion and diminished emergency evacuation capabilities -- which impacts the health, safety and well-being of all of the residents of Mill Valley -- just for a few more inches of painted pavement?

Accepted public safety standards

The as-built configuration of the Pilot Project in the Parkway section of Miller Avenue provides for only 18’-6” of roadway width (the 10'-6" traffic lane, 2' buffer and 5'-6" bike lane) in most places and only 17'-3" at three pinch points near Millwood Avenue on the outbound side, because we must assume that there will be cars and trucks parked along the curbs at the time of any evacuation emergency (no advanced warning system exists). That “one lane” solution fails to meet every comparable federal, state and local standard.

Please consider the following:

What really happens in a catastrophic event?”

The Miller Avenue Parkway Pilot Project was approved without any analysis of impacts on emergency preparedness or citywide evacuation plans in the event of a canyon fire, earthquake or other catastrophe.

Police and fire officials made anecdotal references to current conditions and offered personal opinions about impacts, but no regulatory standards or other authorities were consulted. Questions about the adequacy of the width of travel lanes were brushed aside with suggestions we could somehow turn all lanes of Miller Avenue into out-bound lanes if needed.

I asked a traffic engineer about what really happens in the event of a catastrophic fire or other event. His response was, “All bets are off.” Chaos, in other words, is inherently unpredictable and people will act in ways no one considered.

In the event that a mass evacuation is required, we can be certain that traffic out of town would be overwhelming and likely to quickly result in total gridlock. Firefighters and emergency responders trying to get into the canyons will be stymied by this. But, they will not be the only ones going in the “wrong” direction.

If you are shopping at Safeway and you learn of a canyon fire and announced evacuation, and your children are at home, will you (1) get in your car and head out of town, or (2) attempt to get home to save your children? Others will also head home in an attempt to save their homes or rescue a pet or get valuables before their home is destroyed.

There are a hundred reasons why people in a state of panic will do things that are not “logical” or according to plan.

In the newly narrowed Parkway section of Miller Avenue (our main arterial out of the canyons) cars pulling in and out of driveways and parking spaces will quickly end up becoming diagonal road blocks. Just one driver whose car or truck stalls or breaks down, or who tries to make an ill-advised U-Turn, in panic, can gridlock the whole street. And, in this situation there will be no way to get tow trucks in to move them.

The fatal flaw of the “one lane” solution is that in an emergency evacuation scenario, cars and trucks parked along the curbside become permanent obstacles narrowing the roadway. The remaining 18’-6” or 17'-3" of roadway is simply inadequate to serve the needs of emergency evacuation vehicles if the one traffic lane is gridlocked in both directions.

The city’s claim that they will be able to magically turn both lanes on Miller Avenue into outbound lanes is equally fanciful. Emergency fire and evacuation vehicles must be able to get into our box canyons and residents will do whatever they feel they must do to protect lives and property. No amount of policemen waiving at traffic will deter this in a panicky situation.

The majority decision in plain English

The bottom line for the majority of council members voting for the Pilot Project comes down to this:

Too harsh?

Keep reading and decide for yourself.

The CVP Public Records Act (“PRA”) request

The way the Pilot Project came about, its lack of debate and its unprecedented speed to approval raises questions. How was consensus reached so quickly? Who knew what when? What went on behind the scenes?

To find out, CVP filed a Public Records Act request.

Subsequent to the City Council’s July 17th hearing, CVP filed a Public Records Act request letter on July 20th. We received a confused response from City Manager Jim McCann, who suggested that anything we might need to know could be found in the staff reports, online. This indicated that McCann had no idea what a PRA request entailed.

Consequently, CVP filed a more formal PRA on July 21st. Among other things, we requested

All documents that refer or relate to the decision made on July 17, 2017, by the Mill Valley City Council to recommend proceeding with the “pilot project” to reduce the Parkway section of Miller Avenue to one traffic lane in each direction.

All documents that address the requirements of the California Environmental Quality Act (“CEQA”) with regard to the decision made on July 17, 2017, by the Mill Valley City Council to recommend proceeding with the “pilot project” to reduce the Parkway section of Miller Avenue to one traffic lane in each direction.

This request resulted in a boilerplate response, written by the City Attorney, citing reasons why documents can be withheld. However, it did promise to produce documents by August 4th and August 11th. We reminded the City that the final decision making hearing was scheduled for August 14th, just three days after they were promising to provide critical documents. This would not leave us much time to evaluate them.

The City’s response was lackadaisical. They made no attempt to speed up their stated calendar.

On August 4th and 10th the city produced some “documents.” Unfortunately, most of them were copies of emails from the public, for or against the proposal, or staff reports, all of which were already available on the website. None of these documents addressed our core request that

The documents requested should include, but not be limited to, reports, studies, inter and intra-departmental memos, correspondence and email communications on both city domain and personal email domains of City Council Members and staff members involved in said decision/recommendation.

For the Streetscape Project this would logically include traffic studies, safety studies, environmental studies and emails and correspondence by council members, staff and consultants, in some cases dating back to 2008.

The clock was ticking

CVP and Ed Yates reminded the City that “time is of the essence” and requested immediate compliance. In response, the City’s attorneys sent us a five page letter, again explaining their rights to withhold documents and this time promising to produce more documents on August 24th, August 31st and September 7th respectively.

September 7th was only 6 days before the end of the CEQA statutory filing deadline.

Under CEQA a petitioner must file their legal complaint no later than 30 days after the “agency” (in this case the City Council) has made its decision. Roughly, this meant we would have to have all our evidence in hand, fully evaluated and presented in a Writ by September 13, 2017.

However, CEQA further requires that arguments and evidence be presented to that lead agency prior to their decision, in order to show that the petitioner has “exhausted” all administrative remedies. Unless those arguments, studies and evidence were submitted before that decision making hearing on August 14th, we were precluded from presenting those arguments, studies and evidence, afterwards in court.

Even under the best of circumstances, hiring experts, doing supporting studies and analysis on traffic, air pollution and public safety would have essentially been impossible in less than 30 days (between the date the first Staff Report was released on July 14th and the decision making hearing on August 14th).

In addition, it turned out that the documents most responsive to our requests were not delivered until September 10th, only three days before the September 13th legal filing deadline.

Legal challenges also proceed slowly: motions are filed, hearings get delayed and since evidence went back at least 10 years, the administrative record would have taken many months to assemble. In addition, considering the court’s calendar, there was the possibility that the one year Pilot Project would be over before we’d had our day in court (an appeal would have guaranteed that).

This calculated game, whereby cities undertake projects that require CEQA review then wait until the last minute before claiming that the project is categorically exempt, has become epidemic in Mill Valley and Marin. City and county attorneys appear to be purposely using this tactic to push through projects that are primarily driven by political agendas.

The one positive outcome of our PRA discussions was that the City confirmed that a CEQA process would be required to make the Pilot Project permanent. This means the community should continue to present its concerns about public safety, traffic congestion, air pollution and other issues.

Coda

It is hard to come away from this experience without feeling that the City intentionally delayed delivering documents. And, in some cases documents that we know existed were not produced at all. However, after reviewing the documents we finally did receive, the truth about how the Pilot Project was approved seems to be worse than we’d first imagined.

Part III will be published shortly.

Read PART I HERE

Read PART III HERE


[1] Director of Public Works, Andrew Poster, noted in an email to the City Council on March 14, 2017 that residents had indicated that “were not concerned at all that they would not have curb parking” in the Parkway.

[2] Highway Evacuations in Selected Metropolitan Regions: Assessment of Impediments, April 2010, US Department of Transportation

[3] 90 percent of our working population has to drive to work elsewhere.