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Plan Bay Area Settlement Doesn’t Stop Challenges

By Joe Gose

The legal settlement between the administrators of Plan Bay Area and the Building Industry Association of the Bay Area in February attempts to improve procedures to determine housing needs, and it removes at least one obstacle from the controversial plan’s path to full implementation.

Bay Area real estate The RegistryBut Plan Bay Area’s governing agencies, the Association of Bay Area Governments (ABAG) and Metropolitan Transportation Commission (MTC), still have three more lawsuits pending in Alameda County Superior Court with which to contend. Given the fact that the various plaintiffs have different agendas, the agencies may find satisfying all of them out of court a vexing proposition.

“Frankly the BIA and our lawsuit raise very different issues,” said Irene Gutierrez, an attorney in the California office of Earthjustice, which joined Communities for a Better Environment and the Sierra Club in a lawsuit that challenges transportation and housing decisions in the plan. “It is up to the agencies, depending on what they settle, to make sure that they’re putting themselves in a position where they’re being consistent.”

Legal counsel for MTC declined to respond to questions.

Plan Bay Area was established to conform to California Senate Bill 375, the Sustainable Communities and Climate Protection Act of 2008. The law directed each of the state’s 18 metropolitan areas to develop a “Sustainable Communities Strategy” to accommodate future population growth and to reduce greenhouse gases.

Plan Bay Area provides a blueprint for land use and transportation in the nine-county area through 2040, and it anticipates that the region will add 2 million residents over that time. The plan proposes placing 80 percent of future housing in transit-oriented developments known as Priority Development Areas (PDAs), for example, and it specifies how an expected $292 billion in federal, state and local funds will be spent.

ABAG and MTC adopted the plan in July 2013 amid an ample amount of skepticism over its design and direction. Lawsuits followed.

Specifically, Earthjustice, the Sierra Club and Communities for a Better Environment claim that the plan spends too much on highways and not enough on public transportation, particularly around affordable housing projects, among other complaints.

Similarly, a lawsuit filed by Bay Area Citizens alleges that a “stack and pack” design approach that crams workers and residents into about 5 percent of the region’s surface area ultimately violates the California Environmental Quality Act because the agencies didn’t consider all relevant environmental factors.

Meanwhile, the Post Sustainability Institute, forensic commercial property appraiser Rosa Koire and Michael Shaw, president of Freedom Advocates, filed a complaint arguing that the plan violates the 5th and 14th amendments of the U.S. Constitution, which guarantee property owners the right to just compensation and individuals equal protection, respectively. Essentially they claim that property owners outside of favored zones won’t have the same development rights or opportunities as property owners inside them.

The lawsuit is generally tied to a broader fight against a United Nations program known as Agenda 21, which promotes global sustainable development. The plaintiffs view Agenda 21 as a scheme to enable governments to wrest land-use decisions from private property owners.

Sacramento attorney Timothy Kassouni, who represents the Post Sustainability plaintiffs, couldn’t be reached for comment. But a Kassouni Law blog post by attorney Chance Weldon noted that, if implemented, “Plan Bay Area could have devastating impacts on the economy and on the rights of property owners across the state to develop their properties.”

Plaintiffs in the Earthjustice lawsuit are working on a settlement but have a hearing scheduled in September, Gutierrez said. The Bay Area Citizens Web site said that a hearing on the merits of its challenge is scheduled for June 12. Plaintiffs in the Post Sustainability lawsuit filed an amended complaint in March, according to a spokesman with the MTC.

BIA Bay Area’s lawsuit, also filed in Alameda County Superior Court, contended that Plan Bay Area ran counter to SB 375’s goals by locking future workers out of the Bay Area housing market and forcing them to drive longer distances to work.

Arguing that ABAG and MTC succumbed to parochial political agendas and ideology when developing the plan, BIA Bay Area cited an environmental impact study that detailed the decision to reduce the number of new housing units to 660,000 from 902,000. That threatened to increase sprawl by exporting housing further outside the Bay Area, the impact report said.

Under the settlement, ABAG, MTC and BIA Bay Area reached a broad agreement on procedures for forecasting job growth and housing demand, assessing the feasibility of planned developments and how to monitor progress. Additionally, the settlement would govern how future updates of the plan are carried out. The first is scheduled for 2017.

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