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Damien M. Schiff
Principal Attorney
Pacific Legal Foundation
(916) 419-7111

Jonathan Wood
Pacific Legal Foundation
(916) 419-7111

Peter Singleton
Bay Area Citizens
(650) 575-6330

Lawsuit says “Plan Bay Area’s” drafters wore blinders

High-density development scheme is based on cherry-picked facts and an illegal refusal to evaluate a less restrictive alternative

OAKLAND, CA;  August 6, 2013: Plan Bay Area — a regional transportation plan that would squeeze future residential and commercial development into crowded, high-density zones — must be struck down because it was developed in violation of a key state statute, the California Environmental Quality Act (CEQA).

So argues a lawsuit filed today by Bay Area Citizens (BAC), a coalition of concerned residents from throughout the region who have actively monitored the plan’s development, offering critiques and proposing alternatives. The coalition is represented, free of charge, by attorneys with Pacific Legal Foundation (PLF), a watchdog organization that litigates for limited government, individual rights, and a balanced approach to environmental regulations.


Statements: Why the Bay Area Citizens organization, and Pacific Legal Foundation, are suing

“Plan Bay Area would foist a one-size-fits-all vision of ‘transit oriented development’ on the region,” said PLF Principal Attorney Damien Schiff.

Damien M. Schiff
Principal Attorney

Jonathan Wood

“In this planner’s dream environment, everyone would complacently agree to a regimented lifestyle, living in multi-family housing, and walking, bike-riding, or taking public transit to work. The drafting agencies have come up with an ambitious strategy to micro-manage people’s lifestyle choices. All that’s missing is the legally required justification for doing so. Instead, they’ve studiously ignored data that contradict their agenda. They’ve cherry picked facts to create a false need for their draconian development prescriptions.”

“Members of Bay Area Citizens have been trying for years to open up the process for developing the regional transportation plan,” said BAC spokesperson Peter Singleton. “Our group of average citizens passed the hat among ourselves to commission independent research. We also wrote reports of our own, produced data-based studies evaluating the Plan and its analysis, and offered counter-proposals.

“But the drafting agencies have shown no interest in listening to the public. The insiders have simply been talking to each other. Not only is this a bad way to make policy, we contend it’s illegal because officials ignored environmental facts that didn’t fit their agenda, and refused to even consider a credible alternative strategy. Unfortunately, the agencies’ don’t-confuse-us-with-the-facts approach has made it necessary to take them to court.”

Lawsuit: The Plan devised by ABAG and MTC flouts CEQA

Federal and state law require the Association of Bay Area Governments (ABAG) and Metropolitan Transportation Commission (MTC) to produce a combined regional transportation plan and sustainable communities strategy for the Bay Area. Among other things, the strategy must meet the Bay Area’s greenhouse gas reduction targets (a seven percent per capita reduction by 2020 and 15 percent by 2035), as well as state-assigned housing needs.

However, the lawsuit filed today says that ABAG and MTC violated CEQA by failing to justify Plan Bay Area’s high-density development scheme, and refusing to consider the feasibility of a less restrictive alternative.

Plan Bay Area: a “sardine strategy” for people, housing, and jobs

Plan Bay Area aims to achieve the greenhouse gas reduction targets through “stack and pack” development, requiring 78 percent of new housing and 62 percent of new jobs in the Bay Area through 2035 to be located within some 200 “priority development areas,” small urban and suburban areas designated by Bay Area local governments. Collectively, these zones constitute just five percent of the region’s surface area. The environmental impacts would be significant, with critics predicting increased traffic congestion and concentrated pockets of air pollution. The plan’s own environmental impact report concedes at least 39 negative effects on the environment, including pollution caused by construction work, and the disruption of established communities and living patterns.

ABAG and MTC have illegally ignored facts showing that Plan Bay Area’s
draconian development restrictions aren’t necessary

When a proposed government action carries major development implications, CEQA requires that the public be made fully aware of environmental consequences — the consequences both of proceeding and of not going ahead. This didn’t happen with Plan Bay Area, as Schiff notes: “The agencies closed their eyes to facts that were inconvenient for their goal to squeeze people into enclaves where elbow room and breathing room are at premium.”

The Plan contends that forcing people to live in dense urban concentration will cut greenhouse emissions by reducing automobile trips. “But the Plan’s CEQA analysis ignores the air quality improvements that will result from existing clean-air initiatives at the state level,” Schiff said. “In fact, the region’s greenhouse gas targets are projected to be met naturally, largely because of mandated fuel efficiencies that are on track to be imposed. Plan Bay Area’s sardine strategy for development — its scheme to squeeze and stack people into high-density dwellings and business complexes — simply isn’t needed to reach government air quality goals.”

ABAG and MTC illegally ignored credible alternative strategies

Even if state regulations weren’t doing the job on their own, Bay Area Citizens presented a credible alternative strategy for improving air quality. But ABAG and MTC refused to consider it — again violating their CEQA duty.

“CEQA is explicit in requiring that legitimate alternatives to a proposed government project be evaluated,” said Schiff. “ABAG and MTC violated this legal duty to be open-minded rather than biased and agenda-driven.”

Peter Singleton said: “Bay Area Citizens presented a feasible plan for greenhouse gas reduction that focuses, in part, on expanded bus service and reducing transit fares. This alternative would achieve air quality targets and serve the needs of lower income transit-reliant residents without curtailing people’s freedom to live in detached homes in suburban and rural areas with lawns and gardens. Yet ABAG and MTC wouldn’t consider this alternative.”

The agencies contend the alternative was offered too late in the process — during the period for public comment. However, “Nothing in state law sets this arbitrary time limit on reviewing proposals,” Schiff pointed out.

Filed in Alameda County Superior Court, the case is Bay Area Citizens v. ABAG and MTC. View the petition for writ of mandate, a video and a podcast

About Pacific Legal Foundation
Donor-supported PLF is a watchdog organization that litigates for limited government, property rights, individual rights, and a balanced approach to environmental regulations, in courts nationwide.