Earlier this month, in the case of SOS-Danville Group vs. Town of Danville, 2015 Cal. App. Unpub. LEXIS 6527 (Cal. App. 1st Dist. Sept. 11, 2015), the First District Court of Appeal ruled the Town of Danville failed to adequately consider bicycle safety when it approved the Magee Ranch housing development. The housing development, approved in 2010, would build 69 single-family homes in an agricultural area south of Diablo Road, near the South Gate of Mount Diablo. Diablo Road, between Green Valley Road and Mt. Diablo Scenic Boulevard, is one of the major bicycle routes into the Mount Diablo State Park. Bicycle Magazine has rated the climb to Mount Diablo’s summit as one of the top 10 bicycle climbs in the United States and the Amgen Tour of California has include a stage going up and/or over the mountain twice. Mt. Diablo is a major attraction for bicyclists, particularly those living in the San Francisco Bay Area. Unfortunately, the road is narrow, with many curves and limited line of sight, and lacks bike lanes.
In evaluating the project’s impacts on traffic and bicycle travel, Danville conducted traffic counts and then estimated the number of “trips” the project would generate. However, it only counted traffic on weekdays and, while it estimated the number of additional bicycle trips generated by the project (a maximum of one trip per day), it did not count the number of bicycles trips as it did with car trips. Despite numerous concerns raised by the public about bicycle safety impacts, the projects Final Environmental Impact Report responded very briefly, specifically –
Diablo/Blackhawk Road is a popular route used by bicyclists. However, portions of the roadway are narrow and do not have bike lanes. This route is not a designated Bike Route in the Town’s General Plan. Given the narrow right-of-way along Diablo/Blackhawk, both vehicles and bicyclists should use caution. While the project would add traffic to Diablo/Blackhawk Road, it would not significantly change existing conditions for cyclists. In addition, the physical constraints along Diablo/Blackhawk Road (i.e., narrow roadways and shoulders, existing drainages, the close proximity of trees and telephone poles) limit the feasibility of widening for future bicycle facilities.
After the Danville town council approved the project, SOS-Danville Group sued on violations of the Planning and Zoning Las, as well as violations of the California Environmental Quality Act (CEQA) for failing to consider to disclose or adequately mitigate significant impacts on bicycle safety. CEQA is designed to provide public agencies (particularly the agency approving the project) and the public in general with detailed information about the effect which a proposed project is likely to have on the environment; to list ways in which the significant effects of such a project might be minimized; and to indicate feasible alternatives to such a project with fewer significant effects on the environment. In a residential development project like Magee Ranch, CEQA is part of the entitlement process required for building permits. The building permits authorize the developer to implement the project described in the CEQA document and that project includes all of the mitigation measures, which, for a project like Magee Ranch, could typically include mitigation fees for schools, sewer, parking, fire protection, and traffic. Mitigation fees and other mitigation requirements must have a “nexus” and “rough proportionality” to the impact. In other words, mitigation fees can constitute no more than a “fair share” of the project’s responsibility.
At trial, the court granted the petition with respect to some of the Planning and Zoning Law allegation and with respect to the allegation regarding bicycle safety. Danville appealed, with the Appellate Court finding for Danville on the alleged Planning and Zoning Law violations, but again finding that Danville inadequately considered bicycle safety impacts. Although Danville argued its analysis of bicycle safety was sufficient, albeit brief, was nonetheless sufficient, the Appellate Court disagreed since Danville’s analysis lacked any supporting facts (i.e. evidence) or factual analysis explaining why it believed there was no impact on bicycle safety. Furthermore, since the traffic studies never counted the number of bike trips, it never established a baseline it did not (and could not) discuss the impacts of the project’s increased traffic on the “thousands” of cyclists already using the roads was not enough. Danville could not simply conclude the project would have no impact on bicycles safety on the basis that the roads were already unsafe.
The project included some multi-use off-street paths to connect portions of Diablo Road, but bicycles would still need to use portions of Diablo and Blackhawk Road. Although the Final EIR concluded widening the road to accommodate future bicycle facilities was an unfeasible mitigation measure, Danville could not discount such measures (among others) without first assessing the scope of the bicycle safety problem. Other potential measures recommended in public comments, but not addressed in Danville’s response (and therefore not considered), included adding “share the road” signs at the beginning of curved sections (although a “bikes may use full lane” sign would be better), straightening some of the alignment on curves to improve sight distance, building bike lanes along Diablo Road from Green Valley Road to Mt. Diablo Scenic Blvd, and setting the speed limit to 25mph and enforcing it.
Since both sides won on certain issues, both sides claim victory. Nonetheless, the Town of Danville will likely need to revisit its EIR, consider the project impacts on bicycle safety, and, if it identifies any impacts, incorporate feasible mitigation measures to reduce or eliminate those impacts. However, the project is only responsible for mitigating its impacts. It cannot be responsible for mitigating bicycle safety problems that existed before the project. As a result, the Town of Danville cannot rely on mitigating future project impacts if it wants to improve existing bicycle safety conditions between Green Valley Road to Mt. Diablo Scenic Blvd. In short, it will need other funding.
Some were watching this case to set some precedent that lead agencies needed to consider bicycle safety, but since the appellate court chose not to publish the case, it is not citable in court proceedings and therefore has very limited application. Nonetheless, even unpublished cases can be useful in developing arguments.
The Superior Court ruling is available at http://www.danvillesanramon.com/media/reports/1406851490.pdf (SOS-Danville Group vs. Town of Danville, 2015 Cal. App. Unpub. LEXIS 6527 (Cal. App. 1st Dist. Sept. 11, 2015))
The Appellate Court opinion is available at http://www.courts.ca.gov/opinions/nonpub/A143010.PDF
The planning documents, including the Final and draft EIR, are available at http://www.danville.ca.gov/Services/Planning-Services/Development-Activities/Magee-Ranch-Project/