Fix the City Files Second Lawsuit: MP 2035 “Deemed to be Denied” After August 19, 2015 and Could not be Rescinded or Readopted
Los Angeles — Fix the City, a public interest advocacy organization, filed a follow-up lawsuit against the City of Los Angeles challenging its rescinding and readopting its controversial Mobility Plan 2035 on November 25, 2015.
“We believe that laws matter, public safety matters, public health matters and that quality of life matters. The City’s actions ignore the law and MP2035 fails on public safety, public health and quality of life.” said Laura Lake, a board member of Fix the City.
An earlier lawsuit was filed on September 8, 2015. That lawsuit argued that the MP2035 EIR was flawed and that the procedures followed by the City Council in amending the plan on August 11, 2015, violated the City Charter and LAMC 11.5.6. Under the Charter, if any changes are made after the Commission has approved a plan, those changes need to go back to the Commission within 75 days of the Mayor’s recommendation. August 19, 2015 was the last day to send it back to the Commission. It was not sent back and thus the law clearly states that after 75 days, it must be deemed to be denied. After that date, MP2035 needed to start over with the Planning Commission and any amendments. This did not happen, so the plan is dead under the Charter.
FTC’s first suit clearly demonstrated that the City had violated the law during its initial approval. The City acknowledged as much when it attempted to “cure” the problem by (improperly) rescinding and (improperly)readopting MP2035. Instead of going back through the Charter-mandated process and facing the public, the City has voluntarily and intentionally chosen to violate the City’s law again by trying to amend an improperly passed MP2035.
“How do you amend a plan that is legally dead? Pretend it is alive, ignore the law and hope to confuse a judge,” said Jim O’Sullivan Vice President of Fix the City. The second lawsuit challenges the clear and unambiguous Charter violations made by the City Council in taking action on a plan that had expired under city law.
MP 2035 was never lawfully adopted. It was never lawfully amended. And it was never lawfully rescinded or readopted. It is time to start over and initiate a plan that improves mobility rather creating more soul-crushing traffic.
FTC’s counsel provided the following letter in advance of today’s city council meeting.
As is evident, not only did the city not correct its previous improper actions, it created even more problems.
Lastly, in a time when politicians wonder why fewer and fewer people are voting, today’s action might provide some insight.
By scheduling this controversial item (MP2035) the day before Thanksgiving, when most people are traveling to family, cooking for family or just being with family, the City Council has again shown its disdain for the public and the law.
This so very clearly shows the council doesn’t want public involvement and is taking action to discourage public involvement.
Is it any wonder that the public sees less and less value in voting?
There was a great turnout at yesterday’s joint MP2035 committee meeting.
The committees certainly heard that MP2035 was disliked by the majority of those in attendance. They also heard that increasing congestion and negatively impacting LAFD response times is a very BAD idea. Finally, they heard (over and over) that outreach on MP2035 was dismal.
FTC thanks all those who took the time to let the council know how they feel and also thanks those on the council who voiced their concerns.
FTC is reviewing Tuesday’s meeting outcome. We have ordered a transcript and will review that transcript along with the committee reports. An initial review indicates multiple additional procedural/legal/charter errors may be involved.
FTC will be submitting a supplemental letter from its attorneys once its analysis is complete.
As to the results of the joint meeting… It appears that PLUM approved something (not sure what yet) and that Transpo tied (again, not sure on what) so there was no recommendation forwarded to the full council.
The city has provided Fix The City notice that it intends to hear a motion to rescind the Mobility Plan (MP2035) as amended and then pass a “clean” copy of the original Mobility Plan. They have scheduled a joint Planning and Transportation hearing for November 10th at 2:30 PM.
Should the council actually vote in favor of this motion it would be rescinding and rejecting important amendments including:
- “Considering community input before any Mobility Plan projects are implemented”
- “Ensuring that emergency responders can effectively serve the community.”
- “Affirmatively stating equity as an important factor in prioritizing projects for implementation”
- “Including specific steps to address transportation needs in historically disinvested neighborhoods to achieve regional equity regarding mobility in the City of Los Angeles.”
Fix The City contends in its lawsuit, among other things, that the city council improperly passed MP2035 by amending it without submitting the amended plan to the City Planning Commission as required by City Charter Section 555. The just-released proposed motion specifically states:
“As part of Council deliberations, Council approved three amendments to the plan. On September 9, 2015, a lawsuit was filed challenging the Mobility Plan, and, among other things, specifically contending that the Council’s approval of the amendments did not comply with the procedures prescribed in Los Angeles City Charter Code Section 555. In order to cure the alleged procedural defect, Council would first need to rescind the Mobility Plan 2035 as amended.”
In a last-ditch attempt to rescue MP2035, the city is attempting to fix its first mistake by making the very same mistake again: Namely improperly amending the general plan. In trying to fix their mistake, they city has acknowledged a key claim of Fix The City’s lawsuit.
MP2035 is, for better or worse, a current part of the general plan. The City can amend the general plan (which now contains the amended Mobility Plan 2035) only by starting over and obeying Charter Section 555 and other relevant sections. All amendments can be heard at that time by the Planning Commission and Mayor as required. There are no legal short-cuts.
In addition, an attempt to pass a “clean” copy of the Mobility Plan would be improper as the council has, per the charter, 75 days to take action on general plan amendments approved by the City Planning Commission and/or the Mayor. It is long past 75 days.
Simply put, MP2035 is not only flawed, but it was improperly amended and passed. The only (legal) solution available to the city is to stipulate to a court order invalidating their approval and then go back through the general plan amendment process for the entirety of MP2035 with any amendments council members may wish to add and while respecting the wishes of the voters.
Of course, to revisit MP2035 properly the city would need to update and revisit the flawed environmental impact report which failed to address impacts on congestion, air quality, public safety, growth inducing effects and more.
Perhaps the ultimate motivation behind the new charter shenanigans is that a new public process would mean that the city would have to face a far more educated electorate, and that electorate is not happy with MP2035. They don’t want congestion. They don’t want more traffic. They don’t want slower emergency response times.
With a new public process, the city won’t be able to slip this so-called congestion-increasing, public-safety-decreasing “mobility plan” past the public, the neighborhood councils and several of its own unhappy councilmembers.
Needless to say, this includes serious concerns and some extreme unhappiness with controversial “road diets” such as the one implemented on Rowena in Silver Lake.
Will the city do the right thing? Will they try to paper over a past mistake with another mistake? Stay tuned.
Fix The City can be reached at MP2035 at FixTheCity.Org
The Los Angeles Times’ Steve Lopez attended the recent community meeting on the Rowena “Road Diet.” His article on the meeting can be found HERE.
His takeaway: That the city didn’t do its homework. (Which is the essence of FTCs lawsuit on MP2035).
His personal finding: “Traffic on Rowena can be hellish at rush hour, so I and a lot of other impatient motorists avoid it by taking alternate routes through narrow streets that weren’t built to accommodate the added flow.”
We found this segment was interesting: “Tim Fremaux of the transportation department said that in Silver Lake, the city studied what it was legally required to study, but maybe not what it should have studied. ‘We have by no means done this flawlessly,’ he said. ‘There were errors along the way.’
The problem is that FTC can’t find the legally required studies, can’t find any council file appropriating the funds, can’t find out who authorized the changes and under what authority those changes/expenditures were made.
FTC will be issuing several public records requests exploring these issues. We will be focusing on:
- Under what authority was the Rowena road diet implemented?
- Was any environmental work completed?
- What was the cost?
- What funding source was used?
- Was there a council file opened with a corresponding vote?
- What traffic studies/counts exist for Rowena and connected local streets before and after the road diet was put in place?
- How has the LOS changed on Rowena? VMT? VHT?
- How has the capacity and volume changed on Rowena?
- What has the impact been on local cut-through streets?
- Public Safety – First Responders
- What have response times for LAFD been compared to before the road diet was put in place – both average response time and % of time under 5 minutes?
- What have response times for LAPD been compared to before the road diet was put in place?
- Public Safety – Accidents
- Has there been a change in the number of accidents on Rowena between car/car, car/bike, car/pedestrian, bike/pedestrian?
- Has there been a change in the number of accidents on cut-through streets connected to Rowena between car/car, car/bike, car/pedestrian, bike/pedestrian?
- How many car/bike/ped accidents have been the result of:
- Car driver at fault.
- Bike rider at fault.
- Pedestrian at fault.
- Alcohol/substance abuse.
- Distractions such as cell phones.
- Infrastructure issue (bad roadway surface/sidewalk).
- Has the severity of injuries changed for any accidents since the road diet was put in place?
- What outreach was done before the road diet was put in place?
- Was there a survey before the road diet was put in place?
- Has there been any surveying done of residents in the area concerning impacts of the road diet?
And… we couldn’t agree more with this statements: “When city officials come snooping around your neighborhood with plans for a road diet, don’t assume they’re going to do their homework. Get involved. Ask questions. Work out your own compromises.”
FTC is involved and we are asking questions.
Some stats that may be relevant to the discussion:
CEDILLO: Members, let me add my voice to those who are concerned about inadequate community input, and public safety. My district is a district that is poverty stricken, pollutant-burdened, culturally diverse, linguistically diverse, and with respect to pedestrian fatalities, unfortunately number one, amongst those that are ranked within the data.
I would love to support and came to support this aspirational document. But I’m concerned in doing so that with all the concerns that have been raised here, that this aspirational document becomes in some respects the constitution, for us, moving forward as a city. We should not do that hastily. We should take the time that’s needed to make sure that it’s completed in a way that contains all these elements. Here’s what our concern is: that the foundation for this, in a city of 3.8 million people and where 92 languages are spoken, that only 1,114 active participants participated in the original drafting of the mobility plan. That’s zero-zero-zero-two percent of the city’s population. We can and must do better.
I’m concerned that not a single meeting, of four city workshops, two scoping meetings on the ER, seven community planning forums were in my district. I have a district of Latinos and I’m talking about Mexicans and Salvadorans and Guatemalans and Central Americans. I have a district of Asians, Chinese, various languages, Koreans, Filipinos. They need to be part of this conversation and part of this dialogue. I have a community where people are poor, and where they have pollution, and it’s-and, and they need a response that’s better than saying the transition will be difficult for some. That is just inadequate, that if we agree that there’s going to be more congestion as a result of this transition period over the next 20 years, there has to be a deeper and more sensitive response than saying the transition will be difficult for some. The fact of the matter is 85 percent of the people use their vehicles, 650,000 people drive into the downtown area, the greater downtown area, every day. They’re not included in your statistics. Right?
The fact of the matter is, we have to do the things that position us to accomplish the things that are aspirational. We have to build more housing, we have to build up, we have to be concerned about those who don’t have the capacity to make other choices. The fact of the matter is, there’s one percent of the population that uses bicycles. I’m excited that they may grow 170 percent through this plan, assuming that’s the case, that takes us to 2.7 percent. The fact of the matter is, one percent are pedestrians, but all of us are pedestrians at one point in this process.
And when we reviewed the history in my district, the major concern that we have, are fatalities and hit and runs to pedestrians, and they have to be part of this conversation and part of this dialog. I have to respect the fact that there are some seniors in my district. I have to respect the fact that we have challenges with people with obesity and physical challenges, and accessability, and I have to be a representative for the entirety of my district, not simply one percent, but the entirety of my district. We’ve had those conversations in my district.
We had two town hall meetings. And let me tell you the results and the concerns were distinct from what’s being articulated here. And many of the concerns were concerns around the question of public safety. And that’s just a reality that we cannot avoid, we cannot be hasty about. So while I may share your aspirations, I am a representative of an entire community, and as such I must be responsive to the entirety of my community, and as such, at this moment, unless you’re prepared to take our amendments that respect and respond to the entirety of CD 1, I must ask for a “no” vote.
CEDILLO: As I said, I came into this building to vote for this mobility plan, I truly want to, I share the aspirations, I share the broader vision, in its entirety. But, and so I want to be a member of this 15-member body that supports this broader view, but the reality is, is that I’m a representative of a specific district, and I have a responsibility to the entirety of that district, not simply those who have an interest, that drives their agenda, but to the entirety of the district.
I have, this responsibility, there’s no waiver, there’s no break in this, and so the amendments I brought, as a representative of that district, for me have to be part of this mobility plan. And so I want to them be part of them, I’m asking for them to be voted upon, so that then I could vote for this plan, this is my simple request, Mr. President, that those concerns that have been raised, we’ve had public hearings that had more people percentage wise than the entirety of those who participated in the mobility plan.
And in that, there was not a consensus for this plan, and so the amendments we’re making address the concerns that were raised in those meetings. And so I’m certainly asking, as a person representing my district, that those concerns, that I move them forward and that they have the deference and respect that I would offer and give to anybody else on this floor with respect to concerns that they raise, for their district. I have full deference for every member on this floor.
David Zahnizer and Laura J. Nelson of the LA Times provided us with an insightful article on the “road diet” concept at the heart of the new “mobility” plan.
The article can be found here: Silver Lake street serves as test run for L.A. traffic overhaul
A few key observations on the article:
- FTC decided to check response times for the LAFD station in that area (Station 56). The percentage of arrivals within five minutes of dispatch has gotten 11% worse – from an already scary 52.8% to an even scarier 46.5%. It is supposed to be 90%.
- The photo from the picture, like the other LA Times pictures on MP2035, tells the story: Cars as far as the eye can see stuck in traffic creating smog, one bicyclist (inhaling that smog).
- “Tangible” safety results from decreased accidents (from 15 to 7) are reported. What is missing is the loss of life and property from diminished access by first responders.
- Increased congestion has resulted and has shifted traffic and unsafe driving to neighborhoods. The article quotes one resident as saying “The added congestion…has prompted impatient drivers to take detours, sometimes driving too fast or rolling through stop signs. “The danger on Rowena got shifted to the surrounding streets, and that is the biggest problem.” Another said her hillside street experienced significant spillover traffic from drivers trying to find east-west shortcuts.
- A reminder that the “environmental review of the plan also warned of significant consequences, including an increase in cut-through traffic on residential streets and a doubling in the number of highly congested major street segments.”
- An admission by the City that they made their decision “in the absence of data” in that “as they have expanded that citywide bike network, they have not looked to determine whether the number of backups on those corridors grew significantly as a result.”
- The Board of Public Works rejected the idea of decreasing vehicle lanes with one member citing what he saw as serious traffic problems on Rowena saying it had been “a bit of a disaster,” producing major backups south of the Hyperion bridge. He went on to say “I can’t in good conscience vote for anything that would compound that situation.”
First off, FTC supports increasing mobility for Los Angeles. We support encouraging alternatives to motor vehicles. We support improved air quality. Why then not support MP2035? It is because MP2035 is not a mobility plan – it is a plan designed to create immobility while enabling increased development and density.
MP2035 exposes itself as a false “mobility” plan from the start. It states point blank that reducing traffic congestion is not its goal. For the vast, vast, vast majority of us in this City, being stuck in traffic is the precise opposite of mobility. And that is what this plan promises to do – stick us in more traffic.
In fact, this so-called mobility plan states (and in fact relies on the fact) that it will increase traffic congestion by, among other things, removing traffic lanes used by cars for buses and bikes. Far from trying to reduce traffic congestion, the (mostly unstated) theory is that if traffic congestion becomes SO unbearable (even more than it already is) it will magically force people to take other forms of transit – whether they currently exist or not, are convenient or not or are economical or not.
Removing traffic lanes for the overwhelming bulk of traffic (see US Census chart at the bottom) decreases the capacity of the street. This not only creates longer commutes, but also forces drivers to seek alternative routes which, according to MP2035, will be right through residential neighborhoods.
The LA Times quotes a Senior City Planner as presenting this bit of twisted logic: “Slower moving traffic does not necessarily lead to congestion. Those two are separate. Slower traffic can actually in some ways accommodate more cars moving through an area.”
That’s the kind of logic that tells you the best way to save a drop of water is to approve huge development projects that consume tens of millions of gallons of water, or that the best way to put out a fire is to douse it with gasoline.
People need look no further than this quote from the LA Times: “The City’s Environmental Impact Report concluded that the plan’s projects, if completed by 2035, would result in “unavoidable significant adverse impacts,” including additional noise, cut-through traffic and diminished access for emergency vehicles. The report also found that there would be a considerable increase in the percentage of major streets that are highly congested during evening rush hour.”
This is not Fix The City’s opinion or analysis. This is the City’s analysis. Strange: None of those speaking in support of MP2035 highlighted this conclusion, though one council member dismissed any negative conclusions as “worst-case scenarios needed to avoid legal challenges.” Given that the council must base their decision on substantial evidence presented in the MP2035 study, such unsubstantiated conclusions may be hard to defend.
Perhaps most troubling is the last “unavoidable significant adverse impacts“ mentioned above: That increasing traffic congestion on major streets not only slows regular traffic down, but it slows down emergency response vehicles. Again, this too is admitted by the MP2035 plan.
In 2012, Fix The City’s data analysis exposed (first through KNBC and then extensively in the LA Times) that LAFD response times were falling short – way short, of the City’s stated metric of arrival within 5 minutes after dispatch, 90% of the time. At that time councilmembers were outraged. They promised immediate action to improve this most basic service: Ensuring the safety of the City’s residents.
According to the LA Times, then-Council member Dennis Zine said “he would not have voted for the cuts [to the fire department] if he knew the department was getting to emergencies in less than five minutes only 64% of the time, a figure lower than the 90% goal set by the National Fire Protection Assn.” No such out for current councilmembers who voted yes on MP2035.
Since that time, response times have gotten worse and worse with the 5 minute/90% metric falling to under 60% for the City overall. This last year the City Council congratulated itself for “addressing the problem” by including hiring in the current budget for the first time in years.
Unfortunately, not only is the approved hiring not even sufficient to replace firefighters lost to attrition, it does nothing to replace firefighters lost in previous years or to increase the number of firefighters needed to deal with increased population and density – and now decreased mobility for first responders.
Instead of doing what it takes to improve response times, the Council has approved a plan that admits it will harm response times. To Fix The City, this is simply unacceptable. Even more unacceptable is that certain council members hailed the plan as improving safety when the text of the plan and the plan’s analysis yields the opposite conclusion.
Even more callous is the public description of MP2035 as being one that increases public safety when the City’s own admissions show the reverse. Yes, theoretically 1% of the people may be safer, but 100% of us will experience even more dangerously poor response times. (This is in no way meant to diminish the members of the LAFD who are truly amazing at what they do despite being given insufficient resources)
Below the surface, it is the hidden agenda of the MP2035 plan that links traffic congestion, emergency response times and consumption of other key resources such as water: The drive for increased density – even though the City cannot handle its current density.
Far more than being a mobility plan, MP2035 is actually a development-enablement plan which will have a dramatic effect on increased density in the City with all of its impacts.
How? To combat troublesome neighborhoods from raising concerns about local impacts and the livability of their neighborhoods, the State legislature passed several laws granting expedited review or exemption from certain review for projects near transit (oddly just like the transit proposed by MP2035).
Chief among these is SB743 which states “This bill would provide that aesthetic and parking impacts of a residential, mixed-use residential, or employment center project, as defined, on an infill site, as defined, within a transit priority area, as defined, shall not be considered significant impacts on the environment.” Tell that to the people that live in that environment. AB744 provides for density bonuses within 1/2 mile of a major transit stop (which is pretty much everywhere once MP2035 is implemented).
MP2035 studied none of this growth-inducing impact, nor did it study the increased funding for “transit-oriented development” that may result from non-City sources.
What should further frustrate this City’s residents is that far from being a representative democracy in which our council members are allowed to represent their area’s interests, this City is increasingly run by a very few people who were not elected by those their decisions impact.
The recent Council vote on MP2035 had Council Members Koretz and Cedillo asking for modifications of the plan in their areas. In theory, those council members were elected by their constituents to represent them and their interests. It is expected that council members will have the ability to impact policy in their own districts.
Councilman Cedillo said it best when he said “I have to be a representative for the entirety of my district, not simply 1%.” (He was referring to the fact that bike lanes would remove 50% of capacity for 85% of commuters while bike riders represent only 1% of trips.)
Instead, other council members ignored their colleagues. Oddly, the elected class then wonders why voting in this City has declined to such low levels. Why take the time to vote for council members if they can’t impact policy in their own districts?
We also wonder if the Council truly understands that AB2245 exempts the City/LADOT from having to conduct ANY further study for bike lane restriping once MP2035 is installed. AB2245 “exempts from CEQA the restriping of streets and highways for bicycle lanes in an urbanized area that is consistent with a prepared bicycle transportation plan.” No doubt there will be battles over what “restriping” is as the City attempts to shoehorn MP2035 projects into AB2245.
There is another troubling and misleading conclusion presented by the City: That MP2035 will reduce pollution. It is well established in the literature, and in common sense, that increasing congestion and therefore the time vehicles are operating leads to increasing air pollution.
So how do MP2035’s supporters attempt to circumvent this simple logic? They attempt to use a metric called “Vehicle Miles Travelled(VMT)” instead of the current “Level Of Service(LOS)” or more logical “Vehicle Hours Traveled(VHT).”
Given that motor vehicles of all types represent the bulk of trips in the City, there truly is no other conclusion other than one that states the obvious: Increased congestion for motor vehicles will worsen air quality.
The basic focus of “LOS” is to determine local impacts on intersections near a development project based on how free-flowing traffic is through that intersection. LOS A means no traffic/free flow, LOS F means traffic jams/no mobility.
A huge project that creates 10,000 new trips per day would clearly impact local traffic in the area around the project. It was getting harder and harder to justify building new mega-projects in areas with LOS F gridlocked traffic. This analysis has annoyed pro-density forces as it had the nasty side effect of showing huge impacts on residents, businesses and neighborhoods near the project. This made for bad politics.
So, what is the solution for pesky analyses that show negative local impacts? You simply need to pull back a bit and look at the larger(and unprovable) picture until you are so far away that local neighborhood impacts can no longer be seen.
A plan such as MP2035 that will have major negative local impacts would merely try to do some fancy footwork to claim that because of unmeasurable efficiencies, overall regional VMT will be reduced. What goes unstated is that this approach, even if valid and provable, has at its heart ignoring impacts on local neighborhoods in favor of some theoretical larger regional improvement.
Forget that local traffic will be even more soul-crushing than it is now. Forget that local first responders won’t be able to get to neighborhoods fast enough. Forget that local air quality will be negatively impacted. Forget that parking and traffic lanes will be removed causing harm to local businesses. For voters, the most troubling is that some councilmembers have accepted this approach: Region/politics first, neighborhoods last.
One of the most frustrating parts of the MP2035 plan is that it is wholly inconsistent with itself and with other City policies, plans and laws. Among these are the General Plan, Community Plans and several up and coming plans.
Nothing highlights the hypocrisy better than simultaneous support for MP2035 which admits it will increase congestion (which it counts on to discourage car use) and support for the “Westside Mobility Plan” which labels congestion as the enemy and seeks its reduction.
Three days before the council approved MP2035, it approved a motion to extend the $200,000+ contract for the Westside Mobility Plan. Yes, the City is spending money in one place to solve the problems it is spending other money to create. Our tax dollars at work.
One interesting admission was made by the City through its planning department and through the council: That it is no longer possible to improve traffic congestion by widening lanes or using other measures. This will come as a huge surprise to developers that have produced environmental impact reports which come to the opposite conclusion. Ironically, these same environmental impact reports that say it IS possible to reduce congestion by making physical changes are universally given a stamp of approval by the City including the Council. Those studies and their traffic conclusions may now no longer be supportable.
Fix The City supports improving public safety and improving the quality of life. There is no more basic responsibility a City has than to the life, liberty and pursuit of happiness of its residents. Fix The City strongly believes that a plan that harms first responders’ ability to get to those who need help threatens the lives of the residents of the City. We believe that being caught in ever-increasing traffic jams caused by over-development and now decreased road capacity keeps us prisoners in our cars and keeps us away from our families. Not only does this impact our quality of life and our pursuit of happiness, but it makes pursuing happiness take far longer and far less happy.
Fix The City will be pursuing a legal challenge to the MP2035 on multiple grounds towards the goal of having an honest and productive policy which improves the quality of life for all of the City’s residents in all of the City’s neighborhoods.
2013 ACS Transportation Survey