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New State Law Strikes at Heart of Berkeley Development Fights

By Richard Brenneman
Wednesday February 11, 2009 - 07:32:00 PM

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


If any single class of project has sparked battles between Berkeley neighborhoods and city officials, it’s infill housing. 

The Gaia Building and the now-rising Trader Joe’s and Berkeley Arpeggio projects sparked lengthy debates and deliberations, as well as lawsuits over the impact of massive new construction on nearby neighborhoods and city streets. 

But under terms of the newly enacted SB 375, such projects would be partly or wholly exempt from one of the key legal tools opponents have used to battle them, the California Environmental Quality Act (CEQA). 

And the new law’s CEQA exemptions were the price of winning the backing of two of California’s most powerful lobbies, the California Building Industry Association (CBIA) and the California Major Builders Council. 

Only with a set of changes demanded by the CBIA and the builders’ council would they sign on to a list of supporters that includes most of the major environmental organizations. 

The environmentalists were focused on the goal of reducing greenhouse gases (GHGs) and were willing to yield on a law many had fought long and hard to pass.  



For one class of so-called transit priority projects (TPPs), the only limitation is the same focus that has sparked some of Berkeley’s bitterest political and legal battles in recent years: historic resources—buildings and districts of buildings designated under federal and state laws or under Berkeley’s Landmarks Preservation Ordinance (LPO).  

Exempt projects are those with 200 or fewer units, located on lots smaller than eight acres, served by existing utilities, designed to be 15 percent more energy efficient than required by current building codes and with landscaping that uses 25 percent less water. 

The remaining provision requires either five acres of open space for each 1,000 tenants or allocation of units affordable to moderate-, low- or very-low-income tenants—something already mandated under Berkeley law. 

While SB 375 specifies that the affordable limits can be met by reserving 20 percent of units to moderate income or 10 percent and 5 percent respectively to low- or very-low-income tenants, Berkeley already requires a 20 percent inclusionary allocation of units. 

The state law also allows the CEQA exemption for projects that pay in-lieu fees that would create the same number of units. 

Since Berkeley projects would automatically qualify under SB 375 if built within a half mile of a major transit corridor, opponents would be restricted to fighting a development solely on the issue of impact on historic resources. 

With battles over landmarks already the flash point of Berkeley development politics, the wrangles in City Council chambers and at the polls over the city’s LPO and struggles in the courts and before the city’s Landmarks Preservation Commission are certain to intensify. 

Other residential and mixed-use residential projects meeting a lesser tier of requirements would be exempted from growth-inducing CEQA impacts, as well as some impacts resulting “from certain vehicle trips,” defined by SB 375 as those resulting from cars and light trucks. 

But Kathleen Cha, spokesperson for the Association of Bay Area Governments (ABAG), the regional government entity that oversees allocation of housing construction quotas in the Bay Area, said projects will still have to clear a checklist that declares that the projects won’t have adverse impacts on many of the points covered by a CEQA review. 

The question remains, will the new law weaken the California Environmental Quality Act? 

The question is more interesting when it becomes clear that the provisions limiting the environmental law’s applicability were the price of critical endorsements—especially those of the CBIA and the major builders council. 

As an Aug. 11 memo from the CBIA to “interested parties” noted, among the “overly restrictive” provisions of earlier drafts of the law was “The absence of incentives for housing (i.e., CEQA reform).” 

CBIA also demanded and won removal of provisions that would have required development in concentric circles, with outlying projects allowed only as the innermost areas were completely filled. 

The changes weren’t enough to win the backing of other powerful organizations, including the state Chamber of Commerce and the California Association of Realtors. 

If a local government refuses a rezoning request to develop an infill housing project that meets SB 375’s formula, the law allows the developer or any interested person to sue “to enforce the builder’s remedy.” 

Giving the action even bigger teeth, the law mandates that, when fighting such a challenge, the burden of proof will now rest with the plaintiff, not the defending local agency—which is, in effect, guilty until proven innocent. 


Plan roles 

Regional transportation plans (RTPs) are a requirement set down in federal law, and SB 375 requires California’s RTPs to include a “sustainable communities strategy” (SCS), which will focus anticipated growth in a way that produces the least possible GHGs. 

And the new legislation explicitly links two key planning processes: the regional transportation plan—prepared locally by the MTC—and the Regional Housing Needs Assessment—created regionally by ABAG. 

Under the new law, both plans must now be prepared in coordination with each other and in the same timeframe. 

A second significant change requires that ABAG and similar organizations change their housing needs assessment criteria. 

Currently, ABAG assigns quotas of new housing construction permits that must be allowed under a “fair share” system of quotas for each city. Under SB 375, allocations must comply with the regional SCS. 

The new law requires the transportation and the housing needs plans to be synchronized, and MTC analyst Long said that since her organization has already prepared its draft of their plan covering the next four years, the new coordinated document would first be prepared for the 2013 planning cycle. 

The plans are critical to the environmental streamlining process, since the EIRs prepared for the new consolidated plans will count as the traffic and growth-reducing impacts of the streamlined CEQA process for the TPP projects exempt from traffic and growth analysis. 


Changes ahead  

Long said a key figure in shaping the law has been Tom Adams, president of the California League of Conservation Voters. 

A retired attorney who lives in Burlingame, Adams said the basic goal of the law is “to encourage future development patterns that will reduce the number of vehicle miles traveled, to help the state achieve” its greenhouse gas emission reduction goals. 

A key step in achieving that goal was the bill’s synchronization of three previously separate legal realms: regional transportation planning, regional housing needs assessments and CEQA. 

“In California, all land use decisions are the prerogative of local government,” he said, but SB 375 is designed to create a process that encourages some developments while discouraging others. “The idea is that not all residential and mixed use projects should be treated equally.” 

And while local governments have final say over projects, compliance with the law is the one sure way to receive critically needed state funding for transportation and other projects. 

Though one class of projects would be exempt from the EIR process, Adams said, exemption comes only after a developer has satisfied a long checklist that includes both environmental and land use criteria. 

“For example, no project would qualify if the site is on the state’s list of contaminated sites,” he said. 

Long said that some supporters of the policies embodied in SB 375 would like to see larger projects qualify than are covered by the current 200 unit maximum. “We expect we’ll see some changes once it’s been in place for a while,” she said. 

But the CEQA exemptions worry attorneys like Stephan Volker, who has battled projects endorsed by both the City of Berkeley and the University of California. 

“I haven’t had any cases, yet,” he said, given the law’s impacts won’t be felt immediately. “I looked through it, and the language seems pretty confused. But it sounds dreadful, and it looks like it gives the upper hand to developers.” 


And Berkeley? 

So what does it all mean for Berkeley? 

“It’s going to be several years before we really known,” said Dan Marks, the city’s planning and development director. 

And while Adams said the consolidated plan will be ready early in 2013, Marks said, “It’s a two-year process for CARB [California Air Resources Board] just to give the target numbers to each of the affected regions,” and after that “there’s still a lot to be done at the local level, and everyone is scrambling to deal with this.” 

Marks described the measure as “the most important piece of land use legislation that’s come down in California in years. The fact that it will take a while to react to it is a good thing. But the downside is that climate action is urgent now. 

“Land use changes happen over many years, even decades,” he said.  

Still, Marks said, he had recently attended a smart growth conference in Albuquerque, N.M., “and everyone there was talking about SB 375.” 

Berkeley’s population density is even greater than the two most tightly-packed conurbations in the United States, Los Angeles and San Francisco/Oakland. While the 2000 census figures showed the two West Coast cities as the nation’s densest—with 7,068 metropolitan Los Angelenos and 7,004 SF-Oaklanders per square mile—Berkeley’s population density that same year was 9,822. 

Los Angeles that same year had a 25 percent greater density than metropolitan New York, while Berkeley, in turn, was 39 percent more dense than Los Angeles. 

And in a memo to planning commissioners Dec. 10, Marks said, “Because of Berkeley’s high quality transit and its existing and projected jobs/housing imbalance, this city is very likely to be assigned a progressively larger share of the region’s growth.” 

The question remains: Will even greater density bring the downtown vitality that density boosters promise?