Robert H. Freilich, Partner, Freilich & Popowitz, LLP, Los Angeles; Editor-in-Chief, Emeritus, The Urban Lawyer; A.B University of Chicago; J.D. Yale University School of Law; M.I.A, Columbia University School of International Affairs; Master of Laws and Doctor of the Science of Law, Columbia University School of Law; Professor Emeritus, University of Missouri-Kansas City School of Law; Visiting Professor, University of Southern California School of Law; Visiting Professor, Harvard University School of Law, UCLA School of Law, London School of Economics and University of Miami School of Law; Author: From Sprawl to Sustainability: Smart Growth, New Urbanism, Green Development and Renewable Energy, 2d Edition (A.B.A Section of State and Local Government Law, 2010) (with Sitkowski and Mennillo); and Cases and Materials on Land Use, 7th Edition, (Thomson-West Publishing, 2017) (with Callies and Saxer).
Zachary Price, J.D. University of Southern California Gould School of Law; American Jurisprudence Awards in Procedure, Constitutional Law, and Land Use; B.A., Political Science, University of Colorado (Phi Beta Kappa).
CALIFORNIA HAS LED THE NATION IN CREATING A UNIQUE TRI-PARTITE STATUTORY STRUTURE aimed at reducing global warming and greenhouse gas emissions by linking air quality, transportation, and sustainable land use1 through regional and local planning. The program implements three innovative and comprehensive statutes: Transit Village Development Planning Act, of 1994,2 as amended 2011 and 2017; Global Warming Solutions Act of 2006 (AB 32”);3 and Transportation Planning and Sustainable Communities Strategy (“SCS”) Act of 2008 (SB 375”).4 This article will demonstrate that this tri-partite innovative program has been only partially successful because it: (1) reflects the unwillingness of the state legislature to mandate that city and county plans and zoning must be consistent with the required regional SCS; (2) fails to incorporate strong growth management tiered growth patterns delineated by urban service area boundaries in order to direct growth to central cities and existing first ring suburban infill, thus prioritizing transportation corridor centers and walkable mixed use traditional neighborhood development reducing greenhouse gas emissions; and (3) fails to provide for adequate state review of the SCS, because CARB cannot require changes to the methods by which the region proposes to reach the GHG reduction target.
II. The Three Legislative Enactments
A. Transit Village Development Planning Act
The first of the three statutes, the Transit Village Development Planning Act, is based upon the original concept of planned unit development (“PUD”), as it advanced from clustering of residential subdivisions5 to preserve open space, to PUDs mixing office, commercial, and residential uses6 as a key component of “new urbanism.”7 A PUD can range from infill housing on a few acres of land to a large master planned community of 50 square miles.8 In addition, they should be located within transportation corridors, infill centers, or “new towns” within twenty-year-tiered growth boundaries, prioritizing higher density, mixed use, walkable and affordable within existing urban areas.