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Far-Reaching New State Law May Reshape the Bay Area

By Richard Brenneman
Wednesday February 04, 2009 - 07:00:00 PM
Construction on the Berkeley Arpeggio condo tower moves forward on Center Street, just the kind of project that would have enjoyed an easier approval process under provisions of SB 375.
By Richard Brenneman
Construction on the Berkeley Arpeggio condo tower moves forward on Center Street, just the kind of project that would have enjoyed an easier approval process under provisions of SB 375.

Editor’s note: This is the first of two articles on major changes in California development law. 


Will a new state law strip the last vestiges of local control over the “smart growth” projects that have triggered countless development battles in Berkeley in recent years? 

While early opinions are mixed, there’s little doubt that the laws created to battle globe-warming greenhouse gases (GHGs) could reshape the face of California cities in the decades ahead. 

“Ultimately, no one knows exactly what SB 375 will do, other than create a series of planning milestones that must be met between now and 2010, and then into the future,” declared three attorneys for one of the state’s leading land use litigation firms three weeks after Gov. Arnold Schwarzenegger signed the law. 

But the Sheppard Mullin lawyers said two results could be “significant density incentives” and streamlining of the environmental review process “for certain transit-oriented projects.” 

The parameters spelled out in the law will streamline the path for developers who want to build so-called infill housing projects within a half-mile of any route designated as a major transit corridor. 

And the law gives extra clout to developers and “any interested parties” in legal actions when a city fails to grant the necessary zoning, placing the burden of proof on the government, rather than the developer or development advocate filing suit.  

Something that may be of equal concern to neighborhood activists in Berkeley is that one subset of projects would be totally exempted from the review requirements of California’s landmark environment law, the California Environmental Quality Act (CEQA). 

The Bay Area will only learn what the law’s impacts will be four years from now when the first of a new generation of regional plans is put into place. 


Three laws 

The three pieces of legislation are: 

• CEQA, passed in 1970, modeled on, but stronger than, the federal National Environmental Protection Act passed earlier that year. 

• Assembly Bill 32 (AB 32), the California Global Warming Solutions Act of 2006. 

• Senate Bill 375 (SB 375), signed into law at the end of September. 

CEQA is California’s flagship environmental regulation governing land use, mandating that significant development projects to be evaluated for possible adverse impacts to the physical and cultural environments, and requiring mitigations or special findings where significant adverse effects are found. 

Before any significant project can be approved by the city, county, state or educational system, the elected or appointed bodies governing the agencies must certify that either any significant negative impacts must be minimized or that overriding public policy needs override the adverse effects. 

Project opponents have successfully used CEQA to mount court challenges, blocking, limiting or requiring significant mitigations to major projects. 

AB 32, passed by legislators three years ago, mandates that California reduce GHG emissions to 1990 levels by 2020. A broad scientific consensus holds GHGs responsible for global warming and impacts which rangE from rising sea levels to loss of major swathes of farmland. 

The statute requires that the CEQA review of major construction projects must now include an analysis of development on GHG emissions. 

AB 375, passed by state legislators in August, requires regional planning agencies to link transportation and development policies furthering the goals of AB 32 by concentrating new development along urban transportation corridors. 

The law links GHG reduction to California’s regional land use and transportation planning agencies, embodied locally in the Association of Bay Area Governments (ABAG) and the Metropolitan Transportation Commission (MTC). 

The result, according to a recent ABAG publication, is nothing less that “a planning and development paradigm shift.” 

SB 375, officially entitled “Addressing Greenhouse Gas Emissions from the Transportation Sector via Regional transportation Plans,” is the creation of Sacramento Sen. Darrell Steinberg. 

The legislation has already sparked one miracle in the unusual alliance of environmentalist and development industry organizations which gave it whole-hearted backing: It’s a rare bill that wins the support of both the Sierra Club and the California Building Industry Association. 

A densely worded 56-page text, AB 32 has already proven a bonanza for law firms and software developers, the lawyers marking up new billable hours advising their clients on the complex legislation and the computer nerds hacking out programs to crunch the arcane calculations. 

Steinberg’s legislation only applies to California regions covered by regional planning agencies, exempting 21 of the state’s 58 counties, primarily in rural areas of the north. 

For those regions that are covered by the law, the legislation furthers the process of shifting control of the planning process away from cities and counties and into the hands of regional organizations like ABAG and the MTC. 


CARB in charge 

Overall authority for implementing AB 375 is vested in the California Air Resources Board (CARB), a non-elected body charged under the law with overall authority to impose GHG reduction goals for each of the state’s 18 regional metropolitan planning organizations. 

Each of the planning organizations will be required to create a Sustainable Communities Strategy (SCS) under the authority of the Regional Transportation Plan (RTP). 

CARB will set goals for each region with the help of a Regional Targets Advisory Committee, composed of representatives of the League of California Cities, the California State Association of Counties (CSAC), metropolitan planning agencies, local and regional planners, developers “and other stakeholder groups,” according the a CSAC analysis circulated in October. 

While each metropolitan planning organization (MPO) such as ABAG can recommend a regional GHG reduction goal to CARB, the final decision rests with the board. 

Once the goals are set, each regional organization must then draft a Sustainable Communities Strategy (SCS) to be adopted in the regional transportation plan. 

The SCS “sets forth a vision for growth for the region taking into account the transportation, housing, environmental and economic needs,” according to the CSAC report. 

While adoption and implementation of an SCS isn’t mandatory, the law cuts off state transportation infrastructure funds to affected governments that fail to adopt one—money urgently needed in a state where many roadways are far beyond their design lifespans and are rapidly crumbling. 

According to an Oct. 2 analysis by Morrison & Foerster, one of the state’s leading law firms, “cities may be required to rezone parcels to residential or may have less discretion to disapprove certain projects.” 

The state Legislative Counsel’s Digest attached to the bill says SB 375 “would exempt from CEQA a transit priority project, as defined, that meets certain requirements and that is declared by the legislative body of a local jurisdiction to be a sustainable communities project.” 

For Berkeley, the most portentous provisions of SB 375 may be those that exempt one subset of projects from any review under CEQA because those same provisions leave only one avenue of recourse for opponents: impacts of “historic resources.” 

Under SB 375 so-called Transit Priority Projects (TPPs) are qualified for a streamlined review under CEQA which exempts them from analysis of growth-inducing and increased impacts from car and light truck traffic, which will be covered for CEQA purposes by the regional transportation plan’s EIR, said Rebecca Long, legislative analyst for the Regional Transportation Commission.