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?