Calm before the storm

The state of California wants you to drive less and live closer to work. But who will have the last word on how this happens?

Senate Bill 375, a piece of sweeping anti-greenhouse-gas-emissions legislation signed in September 2008 by Gov. Arnold Schwarzenegger, may mean a future of fewer automobiles on California’s roadways and future development projects that create tighter-spaced, denser communities tied to public transit. 

It could also mean more court battles over future land use.

The California Air Resources Board (CARB) is scheduled to finalize its greenhouse-gas reduction targets by Sept. 30, 2010. San Diego was chosen as the first region in the state to begin work on achieving the goals of the bill. SB 375 specifically names the San Diego Association of Governments (SANDAG) as the lead regional agency to develop a plan for implementing the guidelines.

SANDAG board member and former chair Mary Sessom noted that SANDAG initially opposed the bill—the mayors on SANDAG’s board groused about yet another layer of government oversight—but is now supportive.

“We are now committed to making it work,” said Sessom, currently the mayor of Lemon Grove. “Anything that can help us take control of growth and traffic is a good idea.”

But the real questions could be: Who ends up with the power to make land-use decisions—and what, if any, real changes will take place in land-use planning to lower the amount of carbon dioxide entering the California atmosphere?

The bill requires CARB to work “in consultation” with local governments and agencies, and provide targets for reducing greenhouse-gas emissions—specifically automobiles and light trucks—by 2020 and 2035.

SB 375’s primary goal is the reduction of harmful emissions from automobiles over the course of the next several decades. Sponsored by state Senate President Pro Tem Darrell Steinberg, the bill says that transportation vehicles—planes, trains and, especially, automobiles—are the single largest contributor of greenhouse gases. Cars and light trucks account for 50 percent of air pollution in California and 70 percent of the state’s consumption of petroleum, the bill notes.

In 1990, cars and light trucks contributed 108 million metric tons of greenhouse-gas emissions into California’s atmosphere, according to CARB. By 2004, these emissions had increased to 135 million metric tons. CARB says technological advances in engine and fuel designs could help, but reduction in overall driving is critical to reducing pollution. 

“The goals are laudable, and the policy is accurate in that it is better to try to link transportation with future land-use planning. But the real question is: How will the public react?” said Shawn Shamlou, project manager for Encinitas-based Dudek Engineering, an environmental and engineering consulting firm. “Are people really ready for more density?”

The politically problematic issue of increasing density in neighborhoods is where SB 375 could muddy questions over who controls growth.

“We have 18 sprawl-based communities in this county connected by a series of freeways that only increase traffic,” said Duncan McFetridge, president of the environmental group Save Our Forests and Ranchlands (SOFAR), who spearheaded lawsuits against the county in the mid 1990s. “None of the politicians in those communities want to consider the effects sprawl and pollution from car traffic have on the region as a whole. SB 375 was a start in the right direction.... It has flaws, and it’s not the whole picture, but it begins the process of San Diego thinking regionally.” 

The bill would allow a court to force a city or county to rezone land in order to comply with SB 375. A court could also halt any project indefinitely if it doesn’t meet the goals of the bill. Meanwhile, a developer whose project is halted due to the court’s actions could sue the city or county for the costs of delay. 

“What strikes me... is that if anything happens, it is always the county that pays,” said San Diego trial attorney Clinton Rooney, referring to any local government responsible for approving a development project. “If the county fails to re-zone, the county pays. If the county approves a project and the court finds that they shouldn’t have, then the county still pays. Either way, the county, and thus local tax-payers, would be left holding the bag no matter what.”

Rooney said this provision of SB 375 gives developers an incentive to do whatever is needed to get an initial approval and break ground as soon as possible. 

“If there was a failure to re-zone, the developer is protected as long as the area was slated to be re-zoned. If the area was not slated to be re-zoned, the project is improperly approved and someone actually sues... and the county loses, the developer can still go after the county to recover his or her money,” Rooney noted.

San Diego’s battles over sprawl and land use have become legendary, with the county Board of Supervisors often pitted against environmental watch-dog groups such as SOFAR. 

In 1995, SOFAR took the supervisors to court over a rezoning plan for 191,000 acres in San Diego’s unincorporated backcountry. Judge Judith McConnell,  who now serves on the California Court of Appeals, was the presiding judge in the case. McConnell found the supervisors had failed to adequately create a zoning plan which adhered to the California Environmental Quality Act (CEQA).

CEQA governs land use in California—specifically requiring an environmental impact report (EIR) on any development project that may have a significant effect on the environment. An EIR can often take more than a year to complete, at costs, usually borne by the developer, well in excess of six figures.

SB 375 would exempt from CEQA any transit-oriented project that was declared by the local government to be a Sustainable Communities Project. According to Housing California, a coalition of affordable housing advocates, California will allocate $6 billion a year to transportation projects that implement the SCS, and the SCS will be updated every four to five years as part of the region’s transportation plan. 

SB 375 defines a Sustainable Communities Project as “a realistic development pattern that meets a state target for reducing greenhouse gas emissions, while taking into account the region’s housing needs, transportation demands, and protection of resource and farm lands.”

But such an exemption presumes that an organization like SOFAR won’t challenge in court the local government’s decision or that a judge won’t find the local government made an error in its assessment. This was the circumstance in 1995 when McConnell ruled against the Board of Supervisors.

“It has been said that you don’t know what you’ve got ’til it’s gone,” McConnell said in her ruling against the county. “Yet where state environmental law applies, the opposite is true: Citizens and decision makers must, in fact, be informed of what they have before, and not after, it’s gone.”