North Beach Residents Fight Big Hole | Courthouse News Service
Tuesday, November 28, 2023
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North Beach Residents Fight Big Hole

OAKLAND, Calif. (CN) - Neighborhood groups in San Francisco's North Beach sued the federal and city transit agencies over a "massive excavation project" in the popular tourist area. and sued the Federal Transit Administration and the San Francisco Municipal Transportation Agency in Federal Court.

The plaintiffs challenge "the so-called 'Pagoda Option,' a massive excavation project located in the heart of the historic North Beach area of San Francisco, within an historic district and adjacent or proximate to multiple properties and parks. The 'Pagoda Option' is associated with but is not an essential part of a proposed subway (Central Subway Project) connecting San Francisco's South of market area with Chinatown. The 'Pagoda Option' represents a potential means of removing the tunnel-boring machines to be used for subway construction from the completed tunnel. This lawsuit does not challenge the whole subway project but rather the superfluous and historically destructive 'Pagoda Option.'"

The Central Subway Project is a 1.7-mile light-rail line in San Francisco that will link an existing transit station in the South of Market neighborhood to a new station in Chinatown. The estimated cost of the project is $1.6 billion.

The Central Subway will be built with tunnel boring machines. The excavated area is expected to be at least 20 feet wide and 27 feet deep.

In 2008, the defendants FTA and SFMTA released a "Final Supplemental Environmental Impact Statement/Environmental Impact Report" evaluating the Central Subway Project. In it, the northern terminus of the subway line was described as extending north of Chinatown to Jackson Street, one block north of the Chinatown station.

In what it called the "North Beach Tunnel Construction Variant," the environmental impact statement noted the possibility of extending the tunnels north of the Chinatown terminus for about 2,000 feet, to a site beneath Columbus Avenue in North Beach. The machines could be extracted from the ground at this site through the excavation of a large portal, the nonprofits say in the complaint.

The environmental impact statement noted several properties in North Beach as "historic architectural resources," including the Washington Square Historic District, the Powell Street Shops Historic District, Washington Square Park, Washington Square Park Triangle, and other places. But the report failed to evaluate the potential for the North Beach Variant to "use" these resources, according to the lawsuit.

A Record of Decision formally approving the Central Subway Project did not address these historic resources, nor did it explicitly address the North Beach Variant at all. Nonetheless, the FTA and SFMTA considered the decision as an approval of the variant, the nonprofits say in their complaint.

In 2012, the SFMTA began to reconsider the North Beach Variant after community opposition mounted. Residents and merchants filed a lawsuit, claiming the construction would disrupt the neighborhood.

The SFMTA backed off and prepared a "North Beach Retrieval Option Review," identifying four alternatives to the Columbus Avenue extraction site.

One option would be to leave the machines in the tunnel.

Some estimates claims that the cost of bringing the machines to the surface would exceed the value of the machines, which would probably not be reused anyhow, according to the complaint.

Another option - the one chosen - called for the retrieval at 1741 Powell St., at the Pagoda Theater.

The Pagoda Theater is "within the Washington Square Historic District, immediately adjacent to two other historic properties, within one-half block of three more historic properties, and across the street from a public park," according to the complaint.

The Pagoda Option for retrieval would add $6 million to $8 million to the cost of the Central Subway Project and require additional environmental impact analyses, putting the total cost for this option at $9.15 million, according to the complaint.

It adds: "The 'North Beach Retrieval Option Review' document identifies three alternatives that would be less expensive than the Pagoda Option: (i) leaving the TMBs in a tunnel beneath Columbus Avenue (approximately $3 million less expensive than the Pagoda Option); the North Beach Tunnel Construction Variant (approximately $6-8 million less expensive than the Pagoda Option); and (iii) leaving the TBMs in a tunnel beneath Chinatown (at least $27-31 million less expensive than the Pagoda Option). The document also states that each of these three options could be implemented without the preparation of additional environmental analyses."

On Jan. 31 this year, the city submitted to the FTA an addendum to the environmental impact statement, along with a report from an arborist, a letter from a noise consultant, and a collection of emails and letters described as "support" for the Pagoda Option. The city claimed that Washington Square Park Triangle is not a protected parkland, which contradicted the environmental impact statement, according to the lawsuit.

Based on these documents, on May 10, Leslie Rogers, administrator for FTA Region IX, "issued a one-page 'determination' approving the Pagoda Option and concluding that no further environmental analysis or documentation was needed."

On June 5, 2013, the FTA published a notice seeking judicial review of the Pagoda Option up until November 1.

"On October 25, 2013, more than five months after the FTA Determination and just six days before the deadline for claims seeking judicial review of the Pagoda Option, SFMTA issued a 'Construction Update' stating for the first time that the Pagoda Option includes a large excavation at 1455 Stockton Street, in North Beach. The excavated area will be at least 20 feet wide and 27 feet deep. None of defendants' environmental review documents - not the SEIS, not the ROD, not the 'North Beach Retrieval Option Review,' not the Addendum, and not the FTA determination - disclosed or evaluated any construction activities at 1455 Stockton Street," according to the complaint.

This location, as admitted by the FTA and SFMTA, is an historic resource. A March 2008 "Historic Property Survey Report" attached to the ROD stated that the address was eligible for listing in the National Register of Historic Places for its historically significant architecture and as a significant contributor to the North Beach Historic District.

"The Cavalli Building, located at 1435-1445 Stockton Street is an historic resource within the North Beach Historic District. It is immediately adjacent to and will be impacted by the Pagoda Option excavation now planned for 1455 Stockton Street.

"The building at 635-39 Green Street (also known as 36 Card Alley) is another historic resource within the North Beach Historic District that would be impacted by the Pagoda Option excavation," the nonprofits say.

They claim the transportation agencies violated law by failing to evaluate the potential use of historic resources and by approving a transportation project that will use historic resources or parklands when feasible alternatives exist.

They seek an injunction requiring that the agencies take no action to implement the Pagoda Option and withdraw their approval of the Pagoda Option.

They are represented by Nicholas C. Yost with Dentons US LLP.

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