Under the Transit Village Act, the Legislature finds and declares the following:
- Federal, state, and local governments in California are investing in new and expanded transit systems in areas throughout the state, including Los Angeles County, the San Francisco Bay area, San Diego County, Santa Clara County, and Sacramento County.
- This public investment in transit is unrivaled in the state’s history and represents well over ten billion dollars ($10,000,000,000) in planned investment alone.
- Recent studies of transit ridership in California indicate that persons who live within a one-half-mile radius of transit stations utilize the transit system in far greater numbers than does the public living elsewhere.
- The greater use of public transit, facilitated by the development of transit villages, improves local street, road, and highway congestion by providing viable alternatives to automobile use.
- The development of transit village development districts can improve environmental conditions by increasing the use of public transit, facilitating the creation of, and improvement to, walkable, mixed-use communities, and decreasing automobile use.9
- The development of transit village development districts throughout the state should be environmentally conscious and sustainable, and related construction should meet or exceed the requirements of the California Green Building Standards Code, or its successor code.10 Transit Villages stem from the initial concepts of cluster and conservation subdivisions together with their corollary PUD zoning districts. Metropolitan areas form economic regions that benefit from passenger rail systems. Communities have learned that the benefits of public transport can be enhanced when station-area planning makes it easier for people to walk or bike as well as take transit or drive, provides affordable housing options, and offers businesses greater access to potential employees and customers from across the region. This type of planning, known as transit-oriented development (TOD), brings together housing, transportation, and jobs.11
To comply with the California sustainable green building standards, the Transit Village, or mixed use PUD, must avoid being indefinite and arbitrary regarding sustainable design and improvement standards, and the methods and calculations used for the clustering, number, and density of the lots.12
B. Global Warming Solutions Act (AB 32)
The GlobalWarming Solutions Act, AB 32 of 2006 (“AB 32”) effectively adopted Governor Schwarzenegger’s prior 2005 Executive Order,13 and AB 32 tasked the California Air Resources Board (CARB) with setting a target for 1990-equivalent emissions levels to be achieved by 2020, delegating to CARB “broad responsibility to monitor and regulate any source of greenhouse gas emissions.”14 AB 32 primarily regulated GHG emissions through air quality controls, by setting statewide targets for GHG reduction, but with the added feature of California’s statewide cap- and-trade program.15 AB 32’s targeted GHG reductions became the link to the standards required by SB 375.
C. Transportation Planning and Sustainable Communities Strategy Act of 2008 (SB 375)
When the California Legislature passed, and Governor Schwarzenegger signed into law, the Sustainable Communities and Climate Protection Act of 2008, also known as Senate Bill 375 (SB 375),16 it was the first state law to directly link land use planning — as well as regional housing need allocation and transit infrastructure development — with specific targets for greenhouse gas reduction, to be achieved using, in major part, the principles of TOD to reduce the overall number of vehicle miles traveled (VMT) in cities.17 Although SB 375 built upon California’s pre-existing GHG regulatory framework, which was created by Governor Schwarzenegger’s 2005 Executive Order18 and AB 32,19 the decision to use land use controls to reduce GHG emissions under SB 375 was a game-changer in the field of state- level climate change policy, and the state’s direct entry into land use controls at the state level.20
SB 375 taps into the transformative power of land use planning — a policy area that is traditionally reserved to the realm of local governmental authority.21 First, by co-opting a certain amount of local authority over land use to prioritize regional and state GHG reduction goals, SB 375 enabled California to achieve certain GHG reductions above and beyond what the federal government was achieving. Second, land use planning, as a mechanism for reducing GHG emissions, differs from previous laws regulating GHG emissions,22 as well as other methods of reducing emissions like mandating efficiency standards for technology and fuels.23 SB 375 pioneers a new direction in state climate change legislation, and it presents both new opportunities and challenges that are unique for using TOD to reduce VMT.
To understand these opportunities and challenges, it is helpful to refer to the insights and wisdom of the TOD movement, which emerged from the New Urbanist and Traditional Neighborhood Development movements,24 and which provides the main empirical support for the premise that VMT reductions can lead to important GHG reductions.25
A positive feature of SB 375 is that after an SCS/ RTP has been adopted and approved, SB 375 offers a number of major incentives to developers to build compact, transit-based projects that are consistent with the SCS.26 First, SB 375 offers to “residential or mixed-use residential projects [that are] consistent with … either an SCS or APS” the option of a streamlined California Environmental Quality Act (CEQA) review, in which any Environmental Impact Report (EIR) or similar document must no longer “reference, describe, or discuss (1) growth inducing impacts; or (2) project specific or cumulative impacts from cars and light-duty truck trips generated by the project.”27 Second, SB 375 defines a class of projects, called ‘Transit Priority Projects’ (TPPs), and lays out a long list of specific criteria for a TPP to qualify as a “Sustainable Communities Project” (SCP), which is fully exempt from the requirement of CEQA.28 TPPs that do not qualify as SCSs are allowed to submit Sustainable Communities Environmental Assessment (SCEA), which is a “short form EIR.”29
The Act also has major limitations: (1) The Act provides that “[i]f the SCS … is unable to reduce GHG emissions to achieve the GHG emission reduction targets established by the state board, the MPO shall prepare an Alternative Planning Strategy (APS) … showing how those GHG emission targets would be achieved through alternative development patterns, infrastructure, or additional transportation measures or policies.”30 The APS is not part of the RTP,31 and there is no requirement that the RTP be internally consistent with an APS.32 The statute explicitly permits consideration of projects that fail to achieve the targeted GHG emissions under the SCS, but which are included in the APS: “the inconsistency of a project with an APS shall not be a consideration in determining whether a project may have an environmental impact.”33
SB 375 assigns the CARB the authority to review these SCS plans to determine whether they feasibly meet their GHG reduction targets, or whether the development of an APS is necessary.34 The definition of “feasible” is the same as in CEQA, and “CARB’s determination of feasibility is a quasi-legislative act that is reviewable under the ‘arbitrary and capricious’ standard instead of the ‘substantial evidence’ standard.”35 SB 375 does not require consistency between an SCS and any local planning instruments. The statute explicitly states: “Neither an SCS, nor an APS regulates the use of land. … Nothing in an SCS shall be interpreted as superseding the exercise of the land use authority of cities and counties within the region. … Nothing in this section shall require a city’s or county’s land use policies and regulations, including its general plan, to be consistent with the regional transportation plan or an alternative planning strategy.”36
Thus, the statute does not resolve the major policy questions that must be decided to implement the law. SB 375 fails to identify (1) what level of GHG reduction the state will aim to achieve using changes in land use, and what will be the regional targets for each MPO, (2) what each SCS will include and how its projected pattern of development will look, (3) how the CARB is to decide whether to certify that an adopted SCS plan meets its regional target for GHG reductions,37 and (4) how local governments will adopt the SCS and make it a part of their own land use planning process.
SB 375 leaves these milestone policy determinations to be resolved by politics through the course of the procedures it sets up for each of these respective decisions. Unfortunately, this means that each of these four stages also presents an opportunity for interested actors to significantly compromise the goal of achieving meaningful GHG reductions: (1) CARB may set the GHG reduction targets too low;38 (2) the MPOs may not design SCSs that actually prioritize GHG reductions;39 (3) CARB may erroneously award approval for SCS plans that will not actually be able to meet the GHG reduction targets; and (4) local governments and planning bodies may not make decisions that are consistent with the SCS. These possibilities parallel several of the main challenges facing TOD.
III. SCS Successes Over the Past Nine Years
A. Transit-Oriented Development (TOD), an Expansion of the PUD Concept, Constitutes an Innovative Methodology to Achieve GHG Reductions
Using TOD to reduce vehicle miles traveled (“VMT”) can only work if residents choose to walk and use public transit instead of driving. Cities and counties can use PUDs to create transit-oriented developments that feature “a mix of uses, at varying higher densities, within a half-mile radius of each transit stop.”40 John Nolon aptly writes:
When density is increased for both residential and commercial uses, the distance between origin and destination is shorter and walking, bicycling, and mass transit services are more feasible. In order for increased densities to be tolerated, attractive building, landscape, and streetscape design must be employed. Studies have shown that increased population density decreases automobile ownership and the number of VMT.41
It is generally agreed that certain key elements are necessary components of a successful TOD community: (1) it must have “appropriate physical qualities (e.g. higher density, shorter distance to transit, and sustainable urban form) essential to make TOD work;”42 (2) it must incorporate affordable housing so as to encourage transit use;43 and (3) it must have access to high-quality public transit.44 At the same time, the main goal of TOD is not to create a particular physical form but rather to create places that function differently from conventional development.45 This builds on the recognition that a TOD is only successful if it can manage to integrate with its surrounding community: “the types of uses located within TOD must be carefully matched with the function of the place and with the needs and desires of residents, workers, and visitors … [and the] TOD ought to achieve a functional integration of transit and surrounding development, as well as a synergy among all its uses.”46
These insights help to inform our understanding of why land use, housing, and public transit planning present so many opportunities for reducing GHG emissions using laws like California’s SB 375. TOD theory also informs us, however, that there are numerous challenges that state laws like SB 375 must overcome to successfully use land use to reduce VMT.
First, a successful TOD requires successful coordination of many separate areas of planning policy, including general plan transportation and growth management elements, public transit investment, affordable housing provision, zoning, capital improvement budgets, and official reservation maps. It also requires coordination of many relevant actors who are either involved in the process or have an interest in TOD projects.47 Dana Belzer has warned:
“[This] large number of actors in TOD projects creates an obvious logistical challenge, that of coaxing a coherent and effective performance out of players who may have very different ideas about what that performance should constitute … No single actor can set the agenda, and all players have the tendency to think too small when it comes to setting TOD policy. They often focus on what they perceive as their main function — running trains, for example, or encouraging development — rather than on larger goals.”48
Any failure or shortcoming with respect to any one of these different relevant planning areas may prevent the entire TOD community from reducing GHG emissions in practice.49 A TOD may fall short of its goals if it fails to adequately provide for affordable housing,50 or if a transit agency experiences budgetary shortfalls that cripple the capital improvements for the transit line or station.51
The final challenge facing state laws like SB 375 is that TOD as a land use scheme represents a radical departure from Euclidean zoning and decades’ worth of federal and state policies, which have promoted suburban sprawl, single-family residence home ownership, and automobilecentric lifestyles.52 Many of the development patterns necessary for a successful TOD, access to transit, high-density and walkable mixed use infill, have traditionally been difficult to establish in many California communities, where NIMBY exclusionary concerns over reversing traffic congestion have prevailed over the sensibility of promoting transit, reducing greenhouse gas emissions, and providing affordable and homeless housing.53 This is the ultimate test of SB 375 — whether it can overcome such resistance and achieve tangible urban area land use changes in practice.
The prognosis is favorable. Recently a group of single family homeowners, under the rubric of “The Coalition to Preserve L.A.,” presented a Neighborhood Integrity Initiative to the City of Los Angeles to place a moratorium on all commercial and residential development approvals for two years where the applications require general plan amendments, zoning changes or variances. The Initiative lost badly because an overwhelming majority believed that (1) curtailing residential development would only lead to higher rents and destroy affordable housing, which needs to utilize density bonuses to build; and (2) traffic congestion and quality of life can only improve if more people lived in walkable mixed use TOD neighborhoods.54
Despite these challenges, it is important to recognize that states are presently the only actors that can achieve GHG reductions with land use changes designed to reduce VMT. Furthermore, the predicament of federal inaction on climate change is likely to return with full force in the Trump Administration, which means that state action will be the only option for any GHG regulation in the U.S.55 Accordingly, in the coming years, other states must be able to evaluate California’s experience with SB 375, so that this pioneering law can inform future attempts at state-level regulation of GHG emissions linked to land use.
B. State and Local Coordination with Public Participation
SB 375 attempts to incorporate several pre-existing regulatory structures involving land use, housing, air quality and public transit planning to reduce VMT. The provisions of SB 375 are complex and merit close attention.
Under SB 375, each of California’s eighteen Metropolitan Planning Organizations (MPOs) (COGs) must prepare a Sustainable Communities Strategy (SCS), “which will be the land use allocation in the Regional Transportation Plan” (RTP).56 Under federal and state law, the RTP is a “blueprint for future transportation development”57 that MPOs must develop and submit every four years, which includes a financial element “for recommending projects to be funded with regional improvement funds, if the project is consistent with the RTP”.58 In the new SCS plan elements that SB 375 requires to be included in each RTP, each MPO must prescribe a “forecasted development pattern for the region, which, when integrated with the transportation network, and other transportation measures and policies, will reduce the GHG emissions from automobiles and light trucks to achieve, if there is a feasible way to do so, the GHG reduction target [for the region].”59 SB 375 includes an internal consistency requirement for the SCS and RTP,60 and once an SCS is adopted and approved by CARB, all “regional transportation funding decisions are required to be consistent with the SCS and RTP.”61 Furthermore, the text of the statute suggests that the SCS must have no tolerance for sprawl62 and must also be consistent with the state’s process of allocating regional housing need under Cal. Gov’t Code § 65584.63 An important feature of SB 375 is that it requires the MPOs to engage the public to participate in the development of the SCS, by requiring the adoption of a “public participation plan” that includes outreach efforts, consultation with affected agencies and organizations, public workshops, and circulation of draft SCS plans before adoption.64
When passing SB 375, the legislature declared that its intent is that “housing planning be coordinated and integrated with the RTP.”65 To coordinate the timelines of the RTP and housing planning, SB 375 changed the schedule for revision of housing elements, requiring that local governments must follow an eight-year housing element planning period that synchronizes with the four-year period RTP planning period.66
To integrate housing planning with the RTP, SB 375 uses its only specific planning mandate to require that local governments revise the housing element in their general plans to accord with the regional housing need allocation, and to rezone sites to include minimum density and development standards that are consistent with the housing need allocation in the SCS/RTP.67
C. CEQA Review of SCS Plans Requires Greater GHG Reductions Than Set Forth in AB 32
Under the California Environmental Quality Act (CEQA),68 each regional MPO or COG, must prepare an Environmental Impact Report (EIR) to receive program-level certification for its SCS plan. Citizens’ groups can petition a court to review the adequacy of an EIR under CEQA.69 Thus, litigation can be brought to challenge the adequacy of an EIR for a regional COG SCS plan that fails to achieve meaningful GHG reductions for years 2020 to 2050 — regardless of whether the SCS meets its target set by CARB for GHG reductions by 2020.
These address problems that: (1) CARB may not set GHG reductions targets high enough; (2) MPOs may not adequately prioritize GHG reductions when designing their SCS plans; and (3) CARB may approve SCS plans that do not feasibly meet their GHG reduction targets. This helpful feature of SB 375 counters the possibility that unwilling political actors influenced by local NIMBY constituencies may attempt to compromise the goal of achieving meaningful GHG reductions at any one of these three discretionary policy stages in the implementation process set up under SB 375. It also assists cities and counties by enabling them to reduce their own expenditures and time spent for EIR reviews of plans, ordinances, and development approvals related to GHG emission reductions and growth management by piggybacking the SCS EIR findings into their own EIRs. Through use of CEQA’s programmatic and tiered certification process.
Programmatic and tiered certification of an EIR is an enormously valuable tool because “program or tiered EIR” is a local government EIR whose facts and scope of review are based upon on a series of prior regional actions,”70 and the program or tiered EIR “allows agencies to limit future environmental review for later activities that are found to be ‘within the scope’ of the regional program EIR.”71 The programmatic EIR gives the regional COG greater flexibility to consider broad policy alternatives, while it saves local governmen t major administrative costs by not having to prepare its own EIR on the same subjects.72 Furthermore, “once an EIR is finally approved, a court generally cannot compel an agency to perform further environmental review for any known or knowable information about the project’s impact omitted from the EIR.”73
The CEQA process therefore has become a major tool to achieve SB 375’s goals and objectives because the threat of denial of CEQA certification for the regional SCS (1) has tangible costs for COGs and MPOs as well as local government plans and regulations; and (2) creates pressure for MPOs to design SCS plans that achieve meaningful implementation of GHG reductions by co-opting local governments into modeling their EIRs after the SCS EIR.
To evaluate an EIR’s compliance with CEQA, courts evaluate whether the EIR’s analysis “reflects a reasonable, good faith effort to disclose and evaluate the transportation plan’s GHG emissions impacts.”74 Petitioners challenging the adequacy of the SCS EIR face a major hurdle in overcoming a deferential standard of review, in which courts evaluate whether there was a “prejudicial abuse of discretion by the agency [that prepared the EIR],”75 and “an agency may abuse its discretion under CEQA either by failing to proceed in the manner CEQA provides or by reaching factual conclusions unsupported by substantial evidence.”76 Courts determine de novo whether an agency has correctly followed CEQA’s procedures, but courts give “greater deference to the agency’s substantive factual conclusions.”77 “[Courts] resolve reasonable doubts and any conflicts in the evidence in favor of the agency’s finding and decision.”78
Many groups have already used this litigation strategy, using CEQA program level review of an SCS plan’s EIR to require the SCS to achieve even greater GHG reductions than planned.79 In this case, the Citizens for Responsible, Equitable, Environmental Development (CREED-21), the Affordable Housing Coalition of San Diego, the Cleveland National Forest Foundation, and the Sierra Club filed a petition for a writ of mandate to challenge the adequacy of the San Diego Association of Governments’ (SANDAG) EIR for its SCS plan prepared in accordance with SB 375.80 SANDAG concluded that its SCS plan would actually meet its regional targets for 2020 and 2035 as defined by CARB in accordance with SB 375. The petitioners, however, challenged SANDAG’s SCS plan for its failure to achieve greater GHG reductions than what CARB had set under the procedures created under SB 375.
Petitioners’ principal argument was that SANDAG’s EIR failed to comply with the CEQA as an informational document and an ‘environmental alarm bell’ because it did not evaluate the consistency between SANDAG’s SCS plan and Governor Schwarzenegger’s 2005 Executive Order No. S-3-05, which they argued articulated a state policy of ongoing specific targets for years 2020 through 2050 for setting GHG reductions, which was ratified by the subsequent passage of AB 32 in 2006.81 SANDAG’s SCS plan, they argued, was projected, for years 2020 to 2050, to create a continual increase in GHG emissions, and primarily prioritized congestion relief over the long-term GHG and Global Warming environmental goals.82
Petitioners argued that although AB 32 only tasks CARB with determining how to reach California’s 1990 GHG emissions level by 2020, the passage of AB 32 after Schwarzenegger’s Executive Order S-3-05 served as a ratification of the climate goals in the Executive Order, which required the state to “by 2010, reduce emissions to 2000 levels; by 2020, reduce emissions to 1990 levels; [and] by 2050, reduce emissions to 80 percent below 1990 levels.”83 Furthermore, it was contended that the EIR also violated CEQA by “fail[ing] to adequately address mitigation measures, … failing to analyze a reasonable range of project alternatives … understating the transportation plan’s impacts on agricultural lands … and failing to adequately analyze and mitigate the transportation plan’s impacts from particulate matter pollution.”84
In finding for the petitioning organizations, the California Court of Appeal held that AB 32 had ratified the Executive Order’s statement of statewide climate policy favoring continual decreases in GHG emissions. Furthermore, the court concluded that the EIR’s major point of error regarding CEQA was not that it thought SANDAG’s factual findings were erroneous, but that “SANDAG’s decision to omit an analysis of the transportation plan’s consistency with the Executive Order did not reflect a reasonable, good faith effort at full disclosure.”85
The court emphasized that while SANDAG has “broad discretion to select the criteria it uses to determine the significance of the transportation plan’s impacts … a lead agency cannot avoid finding a potentially significant effect on the environment by applying standards of significance that do not address that potential effect.”86 Furthermore, the court interpreted some of the language of the regulation that specifies how to determine the significance of impacts from GHG emissions — specifically the clause, “A lead agency should consider the following factors, among others,” — to indicate that the criteria are not exclusive.87
Finally, the court found justification for its holding in the statutory “Guidelines for evaluation of projects and preparation of environmental impact statements,” which specifically state that “a project may have a ‘significant effect on the environment’ if — a proposed project has the potential to degrade the quality of the environment, curtail the range of the environment, or to achieve short term, to the disadvantage of long-term, environmental goals.”88 The court also found that the EIR failed to comply with the requirements of CEQA with respect to all of the other issues that the petitioners raised on appeal.89
In response, the dissent argued that agencies maintain broad discretion to set their own significance thresholds and to determine whether an impact of an EIR is significant. The dissent suggested that courts should refrain from interference with the exercise of an agency’s discretion.90 The dissent emphasized that if the court were to read in a requirement that a SCS plan comply with Executive Order No. S-3-05, then it would usurp the power of CARB and undermine the procedures set up under SB 375 because CARB had not yet made a determination of the regional targets for the year 2050.91 The dissent reasoned that to require SCS plans to achieve continual decreases in GHG emissions until the year 2050, as would be required by Executive Order No. S-3-05, the MPOs would need to make a determination about the correct amount of reductions to achieve by 2050, and this would be inconsistent with the sequence for implementation of SB 375.92
The permanence of this decision remains uncertain because the California Supreme Court has granted review for Cleveland National, and decertified the California Court of Appeal’s opinion.93 The outcome will depend on whether the California Supreme Court finds that AB 32 provided statutory ratification for Executive Order No. S-3-05, and whether the CEQA regulations outlining the criteria for determining the significance of GHG emissions requires compliance with Executive Order No. S-3-05.
D. Apply Regional General Welfare Doctrine to Require Consistency Between Local Planning Activities and Regional Objectives of GHG Reduction
The state constitutional doctrine of regional general welfare, which the Supreme Court of California established in its famous decision, Associated Home Builders, Inc. v. City of Livermore,94 is an excellent strategy that may be used to challenge zoning actions made by local governments that cause significant regional spillover effects.95 If a local government were to enact a zoning approval that raised GHG emissions, or if it were to fail to adopt zoning changes necessary to reduce GHG emissions (which in the context of SB 375 implementation would mean failing to integrate the SCS with the general plan or any local zoning ordinances) then affected groups could sue under the doctrine of regional general welfare.
Regional general welfare is the appropriate doctrine for addressing the mismatch between local government interests and the regional GHG reduction objectives articulated in SB 375. The concept of regional general welfare is based on the established state constitutional principle, “that a local land use ordinance falls within the authority of the police power [only] if it is reasonably related to the public welfare.”96
In regional general welfare cases, courts evaluate municipal ordinances to determine “whether the ordinance reasonably relates to the welfare of those whom it significantly affects.”97 The court in Livermore concluded that “an ordinance, superficially reasonable from the limited viewpoint of the municipality, may be disclosed as unreasonable when viewed from a larger perspective … if, as alleged here, the ordinance may strongly influence the supply and distribution of housing for an entire metropolitan region, judicial inquiry must consider the welfare of that region.”98 Indeed, the court in Livermore concluded that the municipal land ordinance at issue — a moratorium on the issuance of residential building permits until public facilities meet certain standards — “had the effect of shifting the burden of providing new housing to other communities in the San Francisco Bay area — a substantial spillover.”99
In Livermore, the court laid out a three-step test for determining “whether a challenged restriction reasonably relates to the regional general welfare”: a court must (1) “forecast the probable effect and duration of the restriction;” (2) “identify the competing interests affected by the restriction;” and (3) “determine whether the ordinance, in light of its probable impact, represents a reasonable accommodation of the competing interests.”100
The logic of the doctrine of regional general welfare does not only apply for housing allocation, however. In Livermore, the court explained:
The zoning power is a police power of the state and the local authority is acting only as a delegate of that power and is restricted in the same manner as is the state. So, when regulation does have a substantial external impact, the welfare of the state’s citizens beyond the borders of the particular municipality cannot be disregarded and must be recognized and served.101
Indeed, in the important environmental case Save a Value Env’t v. Bothell, the Supreme Court of Washington expressly held that municipalities have a duty to serve regional general welfare “when the interest at stake is the quality of the environment.”102 Similarly, in a subsequent California Court of Appeal case, City of Del Mar v. City of San Diego, the court evaluated a number of “various aspects of the regional welfare,”103 including “adverse environmental impacts”104 that could result from the challenged ordinance. In the case, the City of Del Mar was challenging a San Diego ordinance, which was to create a new community called “North City West.” Interestingly, the court in Del Mar significantly limited the reach of the doctrine of regional general welfare, before it concluded that San Diego’s ordinance was a “rational accommodation of the social, economic, and environmental interests with which the city must concern itself.”105 Distinguishing Livermore, the Del Mar court explained that the San Diego ordinance was “inclusionary in nature,” while the “Livermore ordinance was exclusionary,” because “San Diego [was] not able to shift the entire burden of its zoning decision to other municipalities in the region,” while “Livermore was able to shift the entire burden of the regional need for new housing to other localities in the region.”106 The Del Mar court concluded, “the San Diego action is [therefore] considerably less suspect.”107
The court in Del Mar, however, restricted the application of the regional general welfare test from Livermore, writing: “The first two steps … forecasting the probable effect and duration of the restriction and identifying competing interests affected by the restriction — are clearly directed at the restrictive exclusionary-type ordinance at issue in Livermore.”108 “Accordingly, for ordinances that do not shift the entire burden of a zoning decision to other municipalities, courts should only apply the third step — “determining whether the ordinance represents a reasonable accommodation of the competing interests, in light of its probable impact.”109
In the context of an SB 375 case, the significant regional spillover that a court would evaluate would be the effect of a local government’s zoning actions that caused excess GHG emissions to spill over into neighboring cities and counties. A major challenge that such a case would encounter is that a regional spillover of excessive GHG emissions would more likely be considered “inclusionary” than “exclusionary,” under the distinction made by the court in Del Mar. Unlike the moratorium at issue in Livermore, which shifted the entire burden of housing provision to other municipalities, residents both within and outside a municipality in an SB 375 case would experience the GHG spillover effect equally because climate change is a global phenomenon. Accordingly, the third prong of the Livermore test would likely be the operative test for determining whether a city ordinance with significant GHG emission regional spillovers is reasonable.
Arguably, such an ordinance would not pass the third prong under Livermore because, by enacting SB 375, the state articulated that each of California’s eighteen regions, corresponding to the state’s eighteen MPOs, has a strong interest in achieving a target level of regional GHG reductions. To fulfill the third prong of the Livermore test — which requires that an ordinance reasonably accommodate the competing interests, in light of its probable impact — a petitioner may successfully argue that the municipality must take steps to accommodate the regional interest in GHG reductions. Although the test of course does not require a municipality to serve every identified interest, a municipality arguably cannot altogether disregard a compelling state interest, and accordingly must accommodate the regional interest in GHG reductions in its local planning activities. This is arguably a strong requirement to supplement SB 375’s weak mandates.
Furthermore, the third prong of the Livermore test requires an ordinance to account for “its probable impact.” If an ordinance were to increase GHG emissions, or fail to decrease emissions, then the probable impact may be serious injury to the affected interests. This is yet another avenue for arguing that any municipal ordinance, which fails to cooperate in reducing GHG emissions or fails to integrate changes included in an SCS plan, may not adequately satisfy the requirements under the doctrine of regional general welfare.
IV. Necessary Amendments to SB 375 to Achieve Maximum GHG Emission Reductions
This section proposes necessary amendments to address the major weaknesses of the law by exploring two specific alternatives for greater implementation: (1) utilizing growth management to direct growth within urban service area boundaries to facilitate greater infill, TND and TOD; and (2) requiring consistency of local government plans and ordinances with the adopted SCS.
A. Growth Management
Requiring a growth management strategy should be incorporated into all SCS plans. A recent study by Next 10, a public policy think tank, suggested that the state could see substantial driving reductions if it changed policies to funnel new housing into cities.110 The study111 “compared the effects of concentrating all future housing growth into areas that have already been developed with a scenario where only 60% of new homes were built in those locations, which is what happened from 2000 to 2015.”112
1. URBAN SERVICE BOUNDARIES
In 1972, in the far-reaching case of Golden v. The Planning Board of the Town of Ramapo,113 the New York Court of Appeals and the U.S. Supreme Court, for the first time, established the constitutionality of growth management in the U.S. The Ramapo Plan, developed by Professor Freilich and argued by him in the courts, tied the timing and sequencing of growth to the availability and concurrency of adequate public facilities over an 18 year capital improvements plan.114 In the aftermath of the case, states, regions and metropolitan areas throughout the nation have utilized the Ramapo concept of timing and sequencing controls to limit growth through 20 year urban service areas.
Urban service areas are shaped into three distinct patterns115 As growth management transcended in the mid to late 70s from the Ramapo Plan, a three tier regional growth management pattern emerged: (1) Tier I, existing built up areas; (2) Tier II (the urbanizing tier) covering only development over the next 20 years, based on the Ramapo timed and sequenced 18 year CIP; and (3) Tier III, a rural and agricultural, non-development tier). The three-tier concept, derived from the Ramapo Plan, has now become the key organizing principle used by regions, states, and the federal transportation act in enacting model growth management and sustainability legislation. The urbanizing tier (Tier II) concept can be accomplished through either of three alternative patterns of growth:
(a) Concentric growth through use of compact and limited urban service areas adjacent to Tier I infill areas (as in Ramapo) For examples, see Minneapolis–St. Paul; and Portland, Oregon;116
(b) Linear transportation corridors (Puget Sound, Washington [Seattle–Tacoma]; Montgomery County, Maryland [Washington, D.C.] (extending from tier I through tiers II and III); and
(c) Freestanding “new towns” and “major mixed use centers” (E.g. Baltimore County, Maryland; and San Diego, California).117
California has judicially approved urban growth tiered boundaries for many years. In Shea Homes Ltd. Partnership v. County of Alameda, the court upheld an initiative ordinance that revised the general plan by shifting the urban growth boundary to lessen the amount of developable land as a valid measure to support urban infill and preserve agricultural and open space lands.118 The court rejected an exclusionary zoning challenge finding that state law provisions relating to affordable housing requirements were fully met by the land remaining within the urban growth boundary by prioritizing the channeling of development into already populated infill areas that have additional capacity to receive housing.
In Long Beach Equities, Inc. (“LBE”) v. County of Ventura, LBE sought to build 249 single-family residences on a 250-acre parcel land it owned adjacent to the City of Simi Valley (City).119 LBE contended that the growth management land use regulations of Ventura County (County) and the City, on their face and as applied, constituted a taking of its land. The County general plan guidelines established an Urban Growth Boundary, with urban development permitted inside of cities, while only rural-agricultural uses with very low densities were located outside of the Urban Growth Boundary for the unincorporated area of the county. The general plan guidelines also incorporated adequate public facility requirements. To develop at non-rural higher urban densities, unincorporated land owners were required to petition for annexation within a city. The Court held:
“Both the County’s Guidelines and the City’s Growth Management Ordinance satisfy all taking tests. The County enacted the Guidelines to promote efficient and effective delivery of community services and to conserve the resources of County by encouraging urban development to occur within cities and growth outside of cities to remain rural in character with low density uses. The County’s Guidelines emphasize annexation to the City as a means for developers to accomplish these purposes. The City enacted its ordinance “to protect the unique, hill-surrounded environment; enhance the quality of life; promote public health, safety or welfare and the general well-being of the community. …” By limiting the rate, distribution, quality and type of urban residential development on an annual basis, to the availability of adequate public services and facilities, with periodic reviews of the ongoing situation, the City seeks “to improve local air quality, reduce traffic demands … and ensure that future demands for such essential services as water, sewers and the like are met.”120
2. TRANSPORTATION CORRIDORS
SB 375 chose to adopt the “Transportation Corridor-Center or TOD pattern for the standards of the regional SCS and RTP Plans but failed to otherwise establish appropriate urban service area growth management requirements.121 The transportation corridor, if selected as the urban service area, is a geographic and functional area which becomes Tier II. Transportation corridors are the rapidly urbanizing areas in most communities and provide an excellent framework for the application of established precepts of growth management and the sound integration of multi-disciplinary and intergovernmental planning. Transportation facilities are the most effective and significant growth and land use determinants. If creatively harnessed, such facilities can serve as the centerpiece for a well-conceived regional growth management system. They provide a regional perspective, which is broader than the one from which the problem of explosive population growth is traditionally viewed — the local government. Major transportation corridors are, by nature, regional. The focus is the development of a comprehensive plan, which allows for the coordination of local, regional and state planning objectives to assure the rational and orderly development of a regional corridor, the backbone of which is a specified transportation road or transit facility.
“The encouragement of high density development centers at key transit stations within the corridor is a key element of the overall transportation corridor concept. By promoting high density development adjacent to transportation facilities within the corridor, the use of mass transportation and multimodal transportation facilities is encouraged and a sufficient client base is established to help make the massive expenditures required to construct high speed or rapid transit more feasible. High speed and mass transit reduce the dependency of the automobile as a source of travel, effectively reducing energy needs and despoliation of the environment and greenhouse gas emissions and global warming.
As the situs of high density development, the corridor becomes the focus for the state’s developmental activity where major commercial, office, industrial and high density residential development occurs, assuring that employment and a proper mix of housing is available within the state. By encouraging high density residential development of property immediately adjacent to transportation facilities, the unique transportation needs of the elderly and the handicapped are more easily met. By the promotion of high density development within the corridor through joint development and other governmental techniques such as transfer of development rights and bonus and incentive zoning, the public sector is more easily able to protect non-corridor environmentally sensitive land, agricultural lands and provide for open space to break urban sprawl and maintain an urban-rural balance within the state.”122
A simple growth management amendment to the provisions of SB 375 could easily set out mandatory requirements for Tiered Growth Transportation Corridor Centers in SCS and RTP Plans. An excellent model to follow would be the Washington Growth Management Act,123 which delineates goals and issues relating to urban sprawl, transportation needs, and concurrency of public facilities and services. Involving all levels of government, it mandates planning by some cities and counties and by certain multicounty areas.124 These multicounty area and counties must adopt countywide planning policies that serve as the framework for the county and city comprehensive plans. The state mandates specific elements in the comprehensive plans of cities and counties. All counties are required to adopt development regulations that protect critical areas. The GMA outlines consistency requirements for planning, including: (1) city and county plans must be consistent with state goals; (2) city and county plans must be internally consistent; and (3) city and county plans must be consistent with neighboring city and county plans.
The two growth management techniques that are predominant in the Washington system are urban growth boundaries and transportation corridor centers (TODs). Counties that are required to plan ultimately adopt twenty-year urban growth areas (UGAs) in coordination with the city’s proposed growth boundary. Urban growth is encouraged within the UGA, and growth outside the boundary is allowed only if it is considered “not urban in nature.” The UGA is determined through population projections and is to provide adequate land to accommodate growth at urban densities for a twenty-year period, as well as to provide a greenbelt and open space.
Mandatory concurrency and timing for infrastructure is required. The Washington Growth Management Act has explicit provisions for adequate public facility compliance:
(1) Urban growth. Encourage development in urban areas where adequate public facilities and services exist or can be provided in an efficient manner;125 and (2) Public facilities and services. Ensure that those public facilities and services necessary to support development shall be adequate to serve the development at the time the development is available for occupancy and use without decreasing current service levels below locally established minimum standards.126
This policy requires the cities or counties to identify funding for transportation facilities, transportation facility deficits, a capital improvement program, and other future needs on a ten-year frame.127
Metropolitan Planning Organizations (MPOs) are then charged with the coordination of city and county transportation plans within a region. The MPO certifies the transportation portion of local comprehensive plans, develops and adopts a regional transportation plan, and identifies and plans for improvements for transportation corridors of regional significance.128
Other regional entities are involved, including three regional planning boards that hear appeals concerning consistency with UGAs, and are authorized to reject city or county plans and require the submission of a new plan. The State Department of Community Development reviews plans and development regulations for consistency and for required elements. The growth management system requires local governments to adopt ordinances that allow development only if the affected transportation or other public facility will not decline below the predetermined level of services, unless those improvements or strategies for providing the facilities are made concurrent with the development. The legislature defines concurrency as improvements or strategies that are in place at the time of development or that a financial commitment is in place to complete the improvements or strategies within six years.129
Using a set of targeted TOD incentives designed to encourage development around these transit station stops, Professor Freilich recommended that the region utilize a transportation corridor center approach running down the spine of I–5, which would ultimately grow into a full-fledged transit corridor system TOD centers, which together with infill development areas, became the pattern to control sprawl beyond the urbanizing Tier II.130
B. Require Consistency of Local Government Plans and Ordinances with the Adopted Regional SCS
Initial analyses of SB 375 concluded that it failed to incorporate sufficient mandates to require consistency between local planning activities and SCS/RTPs, and that the availability of the APS option led to SB 375 being non-binding on MPOs or local governments.131 Thus “by excluding the APS from the RTP, SB 375 does not prevent state and federal transportation projects, such as highway expansions, that increase GHG emissions &hellilp; MPOs can choose to adopt SCSs that fail to meet GHG targets and still receive state and federal transportation funding for projects that contribute to, rather than reduce GHG emissions.”132 Haney writes that the APS option “effectively remove[s] any additional requirements under SB 375,” and declared that “achievement of the state’s climate goals is unlikely unless MPOs are allowed much more control over resources and municipalities are encouraged, through mandates or incentives, to plan their development in accordance with the SCSs.133
A related criticism is that the incentives that the law created — both for local governments to adopt SCS plans in land use planning instruments, and for developers to actually build TODs — were insufficient for achieving the ambitious objective of imposing TOD concepts on local planning activities.134 A related criticism is that SB 375 provided inadequate funding for MPOs and local governments to satisfactorily accomplish the degree of planning required under SB 375.135 Sciara argues that local governments do not have enough funding specifically for “foundational and late-stage planning that is aligned with SB 375 and SCS principles.”136 The failure of SB 375 to include sufficient mandates or financial incentives create important challenges that cannot be underestimated.
It is important to understand that the unfolding implementation of SB 375 is a long-term process, which will produce tangible, measurable GHG reductions only after the full process has been analyzed and its deficiencies rectified.137 The results that were available at the time of that report’s publication only further support the conclusion that SB 375 is incomplete and requires supplemental strategies to help it achieve its objectives.138
California’s SB 375 is the first state law to link land use changes with direct targets for GHG reductions to be achieved using the techniques of TOD. California’s experience with SB 375 is therefore relevant to other states that may wish to also tap into the transformative power of land use for achieving GHG emissions. SB 375 does achieve a limited amount of success, in that it bridges the divide between different agencies and regulatory structures that must coordinate their efforts to achieve VMT-related GHG reductions, and it mandates the creation of SCS plans that can serve as a clear, unified vision for TOD development in each region. SB 375 also provides incentives to local governments to adopt SCS plans in their local planning activities, and for developers to create projects that are consistent with the SCS. The short record on implementation suggests that SB 375 has experienced a limited amount of success, arguably due to the coordination help and incentives that it provides. SB 375 also has been praised for creating many avenues for public participation in its process for designing and implementing an SCS.
Despite this limited success, SB 375 has also been thoroughly criticized, as failing to provide a mechanism for imposing SCS plans on local land use planning legislation or development approvals, and it arguably does not provide enough funding or incentives for local governments to cooperate in TOD implementation.
Fortunately, SB 375 is an unfolding process of implementation, and the fact that CARB and MPOs must continually revisit and update their planning activities every four years under SB 375 means that there is still tremendous opportunity to positively influence the implementation process. There are three strategies which seem to be promising for supplementing the requirements under SB 375 to promote greater GHG reductions: (1) adding Growth management techniques; litigating CEQA tiered and program-level review of SCS plans; and (3) using the doctrine of regional general welfare to require consistency between local planning activities and state GHG reduction objectives.
CEQA review appears to be a feasible strategy for requiring SCS plans to achieve greater GHG reductions than result from the procedures created by SB 375, but the future of this strategy depends on the Supreme Court of California’s review of the Cleveland National case. If the Supreme Court of California agrees that courts can require SCS plans to achieve the GHG reductions required in the 2005 Executive Order and AB 32, then this strategy can help to supplement the requirements of SB 375.
The doctrine of regional general welfare, on the other hand, is not before the Supreme Court of California for review, and provides an excellent strategy for requiring local government general plans and zoning ordinances to accommodate the regional and statewide interest in GHG reductions, which was articulated by SB 375. Moreover, the limiting rules from Del Mar will not, in our opinion, apply in a regional general welfare suit, because excessive GHG emissions as a regional spillover are not likely to be exclusive.
These three supplemental strategies are not the only strategies that can help to promote successful implementation of SB 375, but they certainly provide an important starting point.