OAKLAND, Calif. (CN) – Citing environmental concerns, a Bay Area citizens’ group asked a state judge to set aside a regional urban plan which advocates high-density growth rather than suburban sprawl.
Bay Area Citizens, a nonprofit represented by self-described conservative legal watchdog Pacific Legal Foundation, filed for writ of mandate in Alameda County Court.
It sued the Association of Bay Area Governments and the Metropolitan Transportation Authority, claiming the agencies’ plan to comply with state greenhouse gas emissions law violates the California Environmental Quality Act, or CEQA.
State law requires that local agencies produce a sustainable-communities strategy to reduce passenger vehicle CO2 emissions by 7 percent by 2020, and by 15 percent by 2035.
The plaintiff claims the Bay Area agencies plan to do this through “a draconian high-density land use regime that will require nearly 80 percent of new housing and over 60 percent of new jobs in the Bay Area to be located within just 5 percent of the region’s surface area.”
Broadly speaking, the plaintiff opposes so-called “smart growth,” which creates densely populated, walkable, mixed-use commercial and residential centers, to reduce sprawl and traffic congestion. Bay Area Citizens seems to prefer spending public money on road and bridge improvements rather than mass transit, and to oppose zoning-or to prefer “more flexible” zoning.
The plaintiff claims that while the sustainable-communities strategy itself does not regulate land use, it “provides powerful tools to coerce a local government to comply with the strategy’s land-use prescriptions, even over the wishes of local residents, taxpayers and their elected representatives.”
The lawsuit continues: “Therefore, the strategy has a significant impact on the region’s environment, for at least two reasons. First, the strategy is incorporated into the region’s transportation plan, which largely dictates which transportation projects will be funded and built. Second, the region’s housing need allocation (formulated by the Department of Housing and Community Development in conjunction with the Association of Bay Area Governments pursuant to the planning and zoning law), to which local governments must conform to their general plans, must be consistent with the strategy. Because of these impacts, the promulgation of a strategy triggers CEQA.” (Parentheses in complaint.)
Defendants’ plan, called Plan Bay Area, aims to reduce greenhouse gas emissions by reducing vehicle miles traveled, through high-density urban planning. Planning agencies have identified 200 “priority development areas” – near transit, jobs, shopping and services – that can be built upward rather than outward.
Plan Bay Area calls for reduced passenger vehicle use by increasing mass transit ridership and through extension and construction of light and heavy rail. Its accompanying environmental impact report acknowledges that increased construction will increase pollution, and the plan itself will disrupt or displace people and businesses, according to the plaintiff.
The group claims the plan is unnecessary, and that the agencies ignored emissions-reduction policies already in place at the state level that will achieve greenhouse gas targets. And it claims that gasoline tax revenue – Plan Bay Area’s funding source – is projected to fall, as fuel consumption in the Bay Area will be reduced by 32 percent by 2035.
Furthermore, “the plan’s high-density housing mandates and mass transit elements will actually increase greenhouse gas emissions,” the complaint states. “The plan’s emphasis on low-performing rail will lead to increased greenhouse gases, because rail construction produces significant greenhouse gas emissions that are not recouped over the life of the rail project. If transit has any emission efficiencies over passenger vehicles, it is by encouraging those individuals who own high-polluting vehicles to leave them at home. As the Citizens’ expert Tom Rubin explained, ‘the only way for transit to make a positive contribution to reductions in energy usage and emissions is for transit to do what it does best – first serve the transit disadvantaged, those whose alternative to transit is a very dirty car.’ Yet the plan makes little provision for improving transit service for those poorer communities where jalopy ownership is highest. Thus, the plan will lead to high-polluting vehicles remaining in service. The plan’s emphasis on forcing the lion’s share of new development into urban priority development areas will increase traffic congestion and consequently emissions. People who work in the Bay Area but do not want to live in high-density developments will move outside the area, thus increasing their commutes and emissions. Further, high-density urban developments are climatological sinks, in that they require more energy to cool and to heat than dispersed single family residences. The increased energy requirements of these developments in turn lead to increased emissions.”
The real issue, Bay Area Citizens claims, is what it calls a “wrongheaded emphasis on new low-performing rail construction,” rather than putting more money into roads, freeways and bridges.
The group cites the Portland, Ore. transit system in the 35-page lawsuit.
“Portland has the most ambitious mass transit program in the country, because of the more stringent ‘smart growth’ laws in Oregon, and because the Oregon Legislature has granted the Portland area transit authority extraordinary regulatory power. Notwithstanding its ‘advanced’ transit program, Portland still has an annual average growth rate of vehicle miles traveled of 2.18 percent, while the [Bay Area] plan inexplicably predicts it will be able to reduce the growth rate of vehicle miles traveled to 0.62 percent.
“The plan’s models are not capable of reliably predicting transit use and development decades into the future, as the plan otherwise contends, for several reasons. First, the models are based on the ‘false hypothesis that the development of priority development areas with good transit access generates economic development.’ Second, they suppose in the no-project alternative that no change in zoning will occur over the multi-decade life of the plan, even while assuming unlimited upzoning for the plan and its alternatives. Third, they assume that technology and human behavior will not change over the plan’s several decades. Fourth, indeed, the plan’s models have a 1.55 percent error rate in predicting the past, yet the plan makes no account of any error rate – much less a comparable error rate – in predicting the future.”
Population and job growth projections also led to the agencies’ over-projection of greenhouse gas emissions and an overstated need for the project, the group claims. They claim the environmental report ignores increasing fuel efficiency and improving fuel composition, and the agencies shut out their suggestions on how to meet air quality targets.
“In their comments, the Citizens underscored that environmentally sensitive alternatives to the plan exist that would achieve the plan’s basic objectives of greenhouse gas reduction and housing development without the plan’s significant and unavoidable impacts. ‘The Bay Area Citizens Transportation and Housing Alternative’ recommends that the region’s sustainable community strategy:
“(a) Expand and improve the existing transit system;
“(b) Significantly reduce fares to encourage individuals to abandon their high-emission vehicles and thereby support the mobility needs of lower-income residents;
“(c) De-emphasize the expansion of high carbon footprint and low cost effective rail transit and ferry service;
“(d) Study how casual carpooling by real-time matching through portable electronic devices can reduce vehicle miles traveled;
“(e) Encourage flexibility in local zoning to facilitate achievement of regional housing needs;
“(f) Advocate for housing type and location consistent with local preferences;
“(g) Encourage expanded use of telecommuting;
“(h) Insist that local communities be informed of the public subsidy costs of affordable housing before the assignment of regional housing needs assessment allocations;
“(i) Insist that local communities be informed of the unfunded mandates involved with the obligation to provide affordable housing before that obligation is accepted;
“(j) Advocate for flexibility in transportation funding;
“(k) Advocate for reform of California housing laws;
“(l) Focus on measurable outputs, such as transit ridership and satisfaction, rather than the cost of inputs.”
How it is that significantly reducing transit fares will help pay the bills of existing transit systems is unclear from the group’s petition. According to the Bay Area Rapid Transit’s financial report from 2010 – the most recent year available – the system known locally as BART makes only 49 percent of its operating funds from passenger fares, despite more than 101 million passenger trips that year.
According to the report, BART made just 23.9 cents per passenger mile in 2010, while its operating costs exceeded 35 cents per passenger mile. BART is heavily subsidized: the system gleaned 37 percent of its operating income from local taxes and financial assistance, while 100 percent of its capital funding came from local, district, state and federal tax dollars.
The plaintiff offered no examples in its lawsuit on how it would tackle affordable housing laws either, most of which are mandated by California and federal laws. According to the state Department of Housing and Community Development website, “the California Legislature and courts have repeatedly indicated in statute and case law that housing is an issue of statewide concern.”
Plan Bay Area’s supporters touted the plan as necessary after its passage on July 18, noting that the area’s population is expected to grow from 7 million to 9 million by 2040.
Napa County Supervisor Mark Luce, the Association of Bay Area Government’s president and a member of the Metropolitan Transportation Commission, said the plan creates “a more sustainable Bay Area for future generations.”
And Orinda Mayor and Transportation Commission Chairwoman Amy Rein Worth described the plan as evolutionary rather than evolutionary.
“For decades, the Metropolitan Transportation Commission has been charged by state and federal law to produce a long term regional transportation plan, while the association has been responsible for assessing regional housing needs. Plan Bay Area puts these elements together in a way that makes sense,” Worth said, according to the commission’s website.
Bay Area Citizens’ spokesman Peter Singleton said in a statement that the group “passed the hat among ourselves to commission independent research” backing their claims. The group accuses the agencies of failing to identify the plan’s basic objectives, to adequately assess a “no project” alternative, to include reasonable and feasible alternatives, and a lack of response to public comments – all requirements under CEQA.
The group seeks an order for a new environmental report that complies with CEQA.
They are represented by Damien Schiff with the Pacific Legal Foundation.
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