On Tuesday, Jan. 26, the San Francisco Board of Supervisors will hear an environmental appeal of the permanent commuter shuttle program. That program, now in a pilot phase, transports thousands of Apple, Google, Genentech, Facebook, and other employees in the technology industry from their homes in San Francisco to their jobs south of the city.
An environmental appeal? I can hear you all asking: Don’t the shuttles get cars off the road — and haven’t we been here before?
They might get cars off the road. But anecdotal evidence indicates that the availability of the shuttles for on-average better-paid tech workers is driving up housing costs in SF – and fueling evictions and displacements of low- to moderate income people to the suburbs and preventing other, low- to moderate-income people from moving in to be closer to their jobs. And with anticipated expansion of Silicon Valley companies, these problems could be exacerbated. Apple alone intends to expand by 27,900 employees in coming years (it has 25,000 in the Bay Area now). What is the housing plan for these new employees?
On the second matter, yes, we have been here before.
On January 21, 2014, the five members present of the seven-member San Francisco Municipal Transportation Authority Board of Directors adopted an 18-month pilot program to test “sharing” public bus stops in San Francisco with the private, employee shuttles.
The mayor appoints all members of the board, and he can dismiss them at will. Proposition A, the 2007 charter amendment, was supposed to make them politically independent. It didn’t. Even Chair Tom Nolan admitted as much at an SFMTA Citizens Advisory Council meeting that he attended last fall. When asked about the independence of the directors from the mayor, he replied, “We are independish.” If that.
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The shuttles have been operating in Muni bus stops illegally for years. Contrary to the message put out by the SFMTA that it was the “Wild West” before the pilot, emails obtained through public records requests reveal extensive communication between SFMTA staff, transportation managers from the various tech companies, and shuttle companies going back at least to 2011. In 2012, one staffer at the SFMTA even arranged to take a ride on a “regularly scheduled” shuttle that picked up employees at Van Ness at Grove at 10 a.m. Another email revealed a “handshake agreement” between the SMFTA and Bauer’s not to ticket the tech shuttles when in public bus stops.
There were problems with the adoption of the pilot program – the Planning Department stamped it categorically exempt from environmental review, which is at least better than what the Super Bowl 50 NFL marketing event on Market Street is getting. Planning decided that the Super Bowl 50 event didn’t rise to the level of a “project” in need of even a categorical exemption from review, even though your one-day block party, which closes off a street, does. (If there is no environmental designation, no pesky member of the public can appeal it to the Board of Supervisors.)
And the pilot was for the most part – and is – still illegal. California Vehicle Code 22500 (i) prohibits private carriers from operating in public bus stops for good reasons – to keep public transportation flowing smoothly and quickly, and to protect riders, especially the disabled, and senior citizens.
When the directors adopted the pilot program, members of the Coalition for Fair, Legal, and Environmental Transit appealed the decision to the San Francisco Board of Supervisors. On April 1, 2014, they lost that appeal on a vote of eight to two (David Campos and John Avalos in support of the appeal; Eric Mar was out of town) and immediately filed suit.
Based on the vehicle code pre-emption matter, it should have been open and shut. But curb space is apparently really valuable. Apple, Google, Facebook, and other Silicon Valley technology companies offer the chance to live in San Francisco and take free, private, luxury transportation to work as job perks. The shuttle bus companies – Loop, Bauer’s, and others – make money, and the technology companies get tax write offs for offering free transportation.
The city? The SFMTA gets a revenue-neutral fee of $3.67 per stop per day and enormous liability risks for selective non-enforcement of the vehicle code.
The pilot started on August 1, 2014. It ends on January 31, 2016.
Plaintiffs in the lawsuit have two very strong arguments: vehicle code pre-emption and the low, low bar that the California Environmental Quality Act sets for requiring an environmental review. An environmental review would evaluate environmental impacts from air quality (most of the buses are diesel, and they make multiple trips, to and from the Silicon Valley – so in at least one direction, they may have no passengers) and slowing down public transportation, to the demographic transformation of the city into an expensive Silicon Valley bedroom community – and the degraded air quality that comes with forcing low- to middle-income people into the suburbs where cars are a necessity and commutes are longer.
An environmental review could include mitigations – building workforce housing for tech workers, expanding public regional transportation, restricting the shuttles to an as-yet un-built “Port Authority of the West,” and so on. (This past fall, the 15-member SFMTA CAC missed passing, by one vote, a motion in support of recommending that the SFMTA disaggregate the shuttles from Muni bus stops, perhaps because only 12 members were present at the time. That’s too bad because another public records request email reveals that some of the tech companies actually want an EIR and even offered to pay for it. Planning rejected that offer.)
The other side – the city, which is the defendant, and the tech companies, which are the real parties in interest, have money. So much money that they have filed motion after motion to drag out the lawsuit and essentially wage a war of attrition against the plaintiffs. First the real parties in interest wanted out of the lawsuit. The judge granted their motion. Then they wanted back in. The judge granted their motion. There have been so many motions – including one to deny standing to the plaintiffs, which the judge denied – that they essentially amount to harassment.
The judge finally heard the case on November 13, 2015. He had until February 11 to release a decision. But then the other side filed a motion to dismiss the case because the pilot was almost over. The judge is now asking both sides to reappear in court on February 16.
Meanwhile, the SFMTA Board of Directors adopted the plan for the permanent program on November 17, 2015. The Coalition is appealing the absence of an environmental impact report for the permanent program on Tuesday, January 26 at the Board of Supervisors. The permanent program includes no limits on the number of shuttles that can be permitted and this language, below, indicating no limit on the number of pubic bus stops that can be converted to shared stops:
The Director is authorized to establish up to 200 Designated Stops for the purposes of this pilot program. The Director may establish additional Designated Stops following a public hearing.
In the meantime, the parts of the program that allow the private shuttles to operate in public bus stops remain in violation of the California Vehicle Code.
So on December 12, 2014, Assemblymember Travis Allen, R-Huntington Beach, introduced legislation to amend the vehicle code. I tried to find out for whom Allen was working, but was prevented from sunshining his communications by the ironically named Legislative Open Records Act.
However, my local public records requests reveal that the SFMTA and the office of the mayor knew about the bill, AB 61, three days after it was introduced. In fact, a red-marked version of the bill, dated January 13, 2015, was passed between Sacramento and the SFMTA, and then another one dated January 22, 2015. But no one in local government told the public. The red-marked version had language that sounded suspiciously similar to language used by Sup. Scott Wiener to defend the original pilot when AB 61 came up at the San Francisco County Transportation Authority a month later:
This bill allows clarifies the existing authority of local authorities to permit shuttle service vehicles to stop for the loading or unloading of passengers alongside municipal curb spaces upon agreement between a transit system operating buses engaged as common carriers in local transportation and a shuttle service provider.
But in the end, Allen’s office decided not to go with the “clarification” language.
The legislation never got heard in committee in 2015, and Allen made it a two-year bill. On January 4, 2016, staff at the Assembly Transportation Committee scheduled it to be heard on January 11. Opponents got busy and most got their letters into the analysis. In support was one private citizen. Opposed in the analysis are:
AFSCME District Council 57
Amalgamated Transit Union
Bernal Heights Democratic Club
California Alliance of Retired Americans
California Council of the Blind
FDR Democratic Club of San Francisco
Gray Panthers of San Francisco
Harvey Milk LGBT Democratic Club
Haight Ashbury Neighborhood Council
Pacific Felt Factory
Potrero Hill Democratic Club
San Francisco Green Party
San Francisco Latino Democratic Club
San Francisco Senior and Disability Action
San Francisco Tomorrow
TWU Local 250a
Unite Here Local 2
Upper Noe Neighbors
And 18 private citizens
Other organizations also opposed AB 61, but their letters were not submitted in time to make it into the analysis. They include:
Hayes Valley Neighborhood Association
Progressive Democrats of San Francisco Steering Committee
Protect Noe’s Charm
Richmond District Democratic Club
United Educators of San Francisco
Yet Allen remains undaunted. On behalf of that one, nameless private citizen who supports amending the vehicle code, he has introduced two more pieces of legislation that are nearly identical to AB 61, AB 1641 and ABX1 25.
Both are urgent, meaning that they will go into effect as soon as the governor signs them into law. ABX1 25 requires that the governor call an extraordinary session of the legislature to get it passed. But getting either passed will be an up-hill struggle, as both require a two-thirds majority of each house.
What makes getting either or both passed so urgent? Here is the language at the bottom of both that explains the urgency:
This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are:
In order to permit the utilization of curb spaces designated for the loading or unloading of passengers of transit system buses by shuttle service providers at the earliest possible time, it is necessary that this act take effect immediately.
The public peace? All I can imagine is that Mark Zuckerberg, Larry Page, Tim Cook, Marissa Mayer, Reid Hoffman, Sean Parker, and Ron Conway, among other tech company founders, CEOs, and/or angel investors, are going to start a riot unless we hand over our public bus stops to them.
I say we don’t give in to the temper tantrum threat so easily.
The likelihood of either of these bills passing is low. What might happen, however, is that the language of any one of these bills could be inserted into another measure, for example a bill to declare June 10 as “We Love Bunnies Day,” as part of the gut-and-amend process. It’s my understanding that this sort of gut and amend is most likely to happen in August or September at the end of the annual legislative process when assemblymembers and senators are trying to get everything passed – and get out of Sacramento. At that point, I have been told, public disclosure requirements may be waived. Which sounds downright unconstitutional for a democracy, if you ask me.
But if you are among the constellation of the wealthiest and most politically powerful corporations that the world has ever known, democracy and the rule of law are inconveniences to you. Throw enough money against them and maybe they will go away and you will own government.
That is certainly what has been happening in San Francisco in recent years. It’s going to take constant – and more – citizen activism to make these corporations – whose products we appreciate – to be better corporate citizens than they are now.