Seven Reasons Why Plan Bay Area is Illegal & Bad Policy for California

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Timothy V. Kassouni

Timothy V. Kassouni

Plan Bay Area is a monumental land use document prepared by the Metropolitan Transportation Commission (MTC), and the Association of Bay Area Governments (ABAG), for the ostensible purpose of reducing greenhouse gas emissions by 15 percent by the year 2035, as required by former Governor Schwarzenegger’s Senate Bill 375. Kassouni Law is currently litigating the legality of this plan in Alameda County Superior Court, and a final decision is expected within the next several weeks. These are the top seven reasons why the plan is a bad idea:

1) The plan violates equal protection.

One provision of the plan allows developers of low income housing a free pass when it comes to complying with the myriad and wildly expensive California Environmental Quality Act (CEQA) process. However, there is no difference between the environmental impact of a low income project, and a non-low income project. This is a classic example of an equal protection violation, and punishes property owners who do not wish to pander to MTC and ABAG projects designed to coerce large swaths of people into high density parcels. Conversely, property owners who wish to use their land for Plan Bay Area projects are given preferential treatment by skirting California’s environmental regulations.

2) The plan will increase housing costs.

One of the main features of the Plan is the diversion of the populace and new development into densely populated areas in the Bay Area. Much of the undeveloped land under Plan Bay Area will remain just that, undeveloped to reduce drive times. This artificially caps continued land development for residential use which will drive the cost of  already expensive Bay Area housing even higher.

3) The plan is not feasible, therefore illegal.

According to an independent study commissioned by the MTC and ABAG, the plan cannot come close to its greenhouse reduction target. It will fail unless substantial legislative changes are made, including the abolishment of Proposition 13, which was enacted in 1978 to help ensure that property taxes do not increase exponentially as the cost of real estate increases, and which also requires a 2/3 vote to increase taxes. Plan Bay Area recognizes the need for increased taxation to pay for its implementation and thereby seeks to abolish Prop 13 for more revenue. It is highly unlikely that legislative changes of this type will be enacted, as Proposition 13 continues to retain the support of Californians. Simply put, in California, it is illegal to implement laws that are incapable of successful outcomes and Plan Bay Area will be unsuccessful if MTC and ABAG are not able to fund Plan Bay Area’s implementation by increasing taxes and gutting Prop 13.

4) Even if implemented, the plan will have no effect on the environment.

Assuming that MTC’s and ABAG’s independent study was wrong and the Plan hit its target, it would only reduce global greenhouse gas emissions by less than one-half of one percent, according to the Environmental Protection Agency. A miniscule drop in global emissions which would do nothing to affect climate change.

5) The plan has the practical effect of taking away local autonomy over the land use process.

The California Constitution has a provision commonly known and the “home rule” guaranty, which grants cities and counties complete autonomy over the land use process, including the preparation of general plans, zoning ordinances, and issuance of building permits. The Plan usurps this local autonomy by cutting off billions of dollars of federal funding unless these local governments rezone property and force most construction into priority development areas to create high population density land parcels. However the United States Supreme Court has likened ultimatums of this sort to a “gun to the head.” Our State Constitutional framework should not be upended with extortion tactics.

6) The plan replaces local government with rule by unelected bureaucrats.

Our state is premised upon local government, wherein the voters of cities and counties can decide issues of land use free from state interference. The plan, however, was drafted and enacted by a handful of unelected bureaucrats who have been given the power to decide what is best for the Bay Area and its residents.

7) The plan is an outmoded solution.

Other than the movement of residents into small parcels, the plan offers antiquated solutions to reduce greenhouse gas emissions. Far less costly, and more in keeping with the culture of the Bay Area the plan should have accounted for advances in technology.  Technology limits the need to drive and will continue to do so exponentially with more advancement thereby exponentially reducing emissions. The reader of Plan Bay Area is left scratching his/her head wondering if this plan is a dinosaur of a 1950′s land planning commission when moving populations would have been the only solution. One is left to ponder, are Bay Area residents giving up their civil liberties when they have many alternative and  viable options to reduce greenhouse gas emissions?