The Bay Area Real Estate Journal
The Visible Hand
Push by state attorney general to control city and county land-use planning has local governments wondering who is in charge.
By Jessica Saunders
California Attorney General Jerry Brown is getting into the land-planning business. The thrust has some local government officials questioning how much say they will have in the future in deciding how their municipalities will develop. Others argue the state’s top law-enforcement officer is clearly stepping outside his bounds.
With California’s passage of the Global Warming Solutions Act of 2006, more and more planning and development notices filed with the state include language about climate change. From just two documents that addressed the issue in 2006, the figure grew to 586 in 2008. Through April 1 of this year, 201 documents discussed global warming as a significant environmental impact.
“It is a unique development,” Lawson said. “It is interesting that they have taken on such an enforcement role.”
Some observers find Brown’s activities hypocritical in light of the fact that as the pro-development mayor of Oakland from 1998 to 2006, he sought special legislation to suspend portions of CEQA for projects in downtown Oakland.
Yet, just a year later, relying on CEQA, Attorney General Brown sued San Bernardino County saying its General Plan failed to address climate change and air pollution as a consequence of its rapidly growing population. A settlement finalized in August requires the county to consider how its land-use decisions will affect greenhouse gas emissions and to devise emission-reduction targets and ways to reach them. Brown himself has acknowledged the inconsistency, joking in 2007 about how differently he sees CEQA as the state’s chief law enforcement officer than he did as Oakland’s mayor.
Brown made waves again in May when he challenged the city of Pleasanton’s 29,000-unit housing development limit approved by voters in 1996. Brown believes the limit forces city workers to commute to work and by extension increases vehicle emissions. Brown’s letter noted his office’s previous guidance to the city regarding its revised General Plan then goes on to say that the environmental analysis of its proposed plan is legally defective. Among the other Bay Area projects and governments that Brown has addressed are Concord, Petaluma, San Jose, Solano County, the Metropolitan Transportation Commission and the Chevron refinery modification in Richmond. While some shrug off Brown’s efforts, others think he is pushing the limits of his authority.
“Climate change is this big unknown; it’s this brand-new uncertainty in CEQA, and when you have the attorney general come in and threaten lawsuits… ,” said Bill Higgins, legislative representative for the League of California Cities. “We don’t know what the law really is. These comment letters are leveraging that uncertainty to reach policy outcomes that are usually beyond the attorney general’s control.”
Higgins cited an example in the Stockton settlement where specific limitations were imposed on the numbers of housing units to be built and their locations. Such questions are typically well within the purview of local governments and locally elected public officials.
“If climate change is really about reducing the amount of carbon dioxide emitted into the atmosphere, that is what really matters, and how a local agency chooses to mitigate that is up to the local agency. That is not what is in these settlements typically,” Higgins said. “I think it’s fair to say that some of our members think the attorney general is interfering in local decisions.”
San Benito County, for one, has gotten Brown’s message. It expects to incorporate climate-change mitigation in its General Plan update, which is roughly two-and-a-half years away, said Art Henriques, county director of planning and building services.
“The attorney general’s comments are advisory, unless you get sued by the attorney general’s offices as has happened in other cases,” Henriques said.
The debate over local versus state control is likely to heat up in the years ahead. The California Air Resources Board is moving forward with implementing the 2006 act, better known by its bill number AB 32, and companion laws passed in 2007 and 2008. AB 32, which takes effect in 2012, requires the state to cap greenhouse gas emissions at 1990 levels by 2020, to monitor and report emissions by all significant sources and to develop and implement emission-reduction measures. The 2007 law, SB 97, requires the state to adopt regulations for the mitigation of greenhouse gas emissions as an environmental impact under CEQA by Jan. 1, 2010. Finally, the 2008 law, SB 375, requires metropolitan planning organizations to develop strategies in their regional transportation plans to reduce greenhouse gas emissions by targeted amounts and to align transportation and housing planning.
“The picture is starting to be filled in a little bit” when it comes to legally required climate change actions, said Todd Williams, vice chairman of the land use group at Morgan Miller Blair in Walnut Creek. The attorney general’s actions regarding climate change have been in a sense “filling a void” between the passage of AB 32 and its implementation, he said.
Deputy Attorney General Janill Richards, who helps to review development and planning notices moving through the state clearing house, argues that her boss is not jumping the gun, even though AB 32 and subsequent laws are still in the process of being applied.
“CEQA doesn’t allow you to wait. The city or county has to see what it can do now,” she said. AB 32 gives guidance “about what our goals should be and the types of measures we can take to reduce our emissions.”
If developers or planners submit environmental documents to the state that call climate change speculative, say greenhouse gas emissions can’t be estimated or fail to explore mitigation measures, they are red flags to the attorney general’s office, she said.
“Obviously Jerry Brown has taken this to the next level. He thinks this is a very important issue. It takes into account social, transportation and planning issues we have been talking about for a long time and allows us to talk about them in a new way,” Richards said.
She emphasized that Brown has only sued on the climate-change issue once. She also disputes that her office is usurping local control.
Despite all this guidance, local governments have “broad discretion” to decide how to address climate change, Richards said. “What they can’t do is simply do nothing.”
Land Use
Home | Current Issue | Past Issues | Advertising | About Us
