Can California — a state known for its suburban sprawl and dependence on the automobile — successfully legislate its way out of both problems?
On September 30, 2008, Senate Bill 375 received the blessing of Governor Schwarzenegger and became the law of the state of California. Promising a new vision for land use planning aimed at reducing greenhouse gas (GHG) emissions with a complement of regional mandates and local incentives, the bill has incited reactions ranging anywhere from enthusiasm to disgust, with some skepticism expressed by smart growth proponents and opponents alike.
SB 375 is a rather long, complicated piece of legislation, and I thought for some time about how to best present its contents in an online medium. Rather than write a long essay detailing each section of the legislation, I finally settled on a series of questions & answers as a good way to meaningfully convey the key points. You might think of this as an F.A.Q. page for SB 375.
Although this blog is focused on the San Francisco Bay Area, I am aware that people from around the state and beyond find their way here. SB 375, of course, applies throughout California, so this particular page is written to apply to all of California — in that it discusses the bill abstractly rather than applying it to a specific region. I will soon create another page to document SB 375-related planning specific to the Bay Area, and there will no doubt be blog posts on that topic as well.
(scroll through or click question links for answers)
What is the point of SB 375?
SB 375’s broad scope makes it the sort of bill that appeals to many different types of advocates, including urbanists interested in revitalized city centers, public health advocates, and environmentalists fighting to preserve open space and species habitat that might otherwise be consumed by sprawling subdivisions. Despite the many attendant benefits of compact development, the primary goal of SB 375 from the viewpoint of California state government is to reduce GHG emissions. Land use is therefore included as one of the many strategies that the State is pursuing to combat climate change.
On September 27, 2006, Governor Schwarzenegger signed Assembly Bill 32, the Global Warming Solutions Act, which requires that GHG emissions in California be reduced to 1990 levels by 2020. Automobiles and light duty trucks are responsible for almost 30% of GHG emissions in California, and transportation generally is responsible for about 40%. In order to address this substantial contribution made by passenger vehicles to the state’s overall GHG emissions problem, the State Air Resources Board (ARB) — the state agency charged with implementing AB 32 — intends to pursue three strategies. Two of those strategies proceed by reducing the impact of vehicles on climate change. The Pavley standards are estimate to contribute 31.7 million metric tons of carbon dioxide equivalent (MMTCO2E) reduction, while the Low Carbon Fuel Standard is expected to contribute 15 MMTCO2E of reduction, both through 2020.
But those two strategies are not alone enough to put California on track to meet the overall emission reduction goals required by AB 32, so ARB included a third strategy, which takes a fundamentally different approach. Rather than reducing the impact of existing driving patterns on climate change, the goal of the third strategy is to change lifestyles and encourage less driving. ARB seeks to reduce vehicle miles traveled (VMT) statewide by encouraging appropriate changes to the built environment that make it attractive for more people to take walk, bicycle, or take transit instead of drive. ARB hopes that VMT reduction resulting from more efficient land use patterns will realize about 5 MMTCO2E of reduction by 2020. SB 375 thus plugs into AB 32, by reforming land use planning in productive ways that will hopefully help achieve the desired reductions in GHG emissions.
It bears mention, though, that land use is, by its nature, a slow, unpredictable process, and the pace of development is slowed by obstacles like economic downturns. At the same time, it is hard to predict at this early stage the exact magnitude of environmental, economic, health, and lifestyle benefits that will eventually result from changing how California builds its cities.
What is a metropolitan planning organization?
Federal law requires that any urbanized area with population of at least 50,000 be governed by a regional entity known as a metropolitan planning organization (MPO). Eighteen MPOs are designated in California, accounting for approximately 98% of the state’s population.
The jurisdictions of these MPOs vary widely throughout California. In some cases, multiple counties that are seen as part of the same metropolitan region are grouped under a single MPO. These include the Metropolitan Transportation Commission & Association of Bay Area Governments (MTC/ABAG for the 9-county Bay Area), the Southern California Association of Governments (SCAG for 6 counties, including Los Angeles), the Sacramento Area County of Governments (SACOG for 6 counties, including Sacramento), and the Association of Monterey Bay Area Governments (AMBAG, for Monterey, Santa Cruz, and San Benito counties). In many other cases, MPOs split along county lines; notable examples include San Diego Association of Governments (SANDAG for San Diego County) and the 8 single-county MPOs in the San Joaquin Valley. Click here to view a map (PDF) of MPOs in California.
The responsibilities of an MPO include adoption of a Regional Transportation Plan (RTP) and funding transportation projects pursuant to that plan. The purpose of the RTP is to project the funding that is reasonably expected to become available to the region through some planning horizon year at least twenty years distant. The plan then allocates funding to operate, maintain, and expand the regional transportation system, including roads and transit, that serve its jurisdiction.
MPOs therefore form the regional level of governments, occupying the space between local governments and the State. As discussed in more detail below, SB 375 requires MPOs in California to assume an expanded role in regional planning.
What were things like before SB 375? Was it really that bad?
Regional planning in California has generally been disjointed, subject to separate legal frameworks — regarding transportation, housing, and the environment — that have largely operated independently of each other, despite being clearly related conceptually. In addition to federal requirements for transportation planning, state law also governs the environment and housing. The California Environmental Quality Act (CEQA) requires that the potentially significant environmental impacts of planning efforts and specific projects be analyzed — along with measures that mitigate those impacts, and alternatives that may reduce the environmental impact. RTPs, general and specific plans, as well as particular transportation and development projects, are all subject to CEQA.
The Regional Housing Needs Allocation (RHNA) is another state requirement, designed to ensure that cities absorb their fair share of the state’s future housing need. Under the RHNA, the State Department of Housing and Community Development (HCD) uses population forecasts to determine each region’s future housing need. After issuing regional housing need determinations to Councils of Government (COGs), the regional government then distributes to each local government its fair share of the regional housing need, as a number of units that it needs to accommodate for that planning period. Local governments are required to update the Housing Element of their general plans every five years, in order to plan where and how it will accommodate its most recent housing allocation requirement under the RHNA. An important aspect of the RHNA is it requires local governments to plan to accommodate a specific number of units for a full range of income levels: very low-income (0-50% of Area Median Income), low-income (51-80% of AMI), moderate (81-120% of AMI), and above-moderate (over 120% of AMI).
Despite numerous requirements that regions in California plan for future housing and transportation need, the disjointed arrangement that existed prior to SB 375 could sometimes lead to counterproductive results in practice. For instance, an MPO could decide to fund an expensive transit project — but because MPOs have no authority to zone or otherwise regulate land use (that power lies with cities and counties), the necessary funding would be allocated without a guarantee that sufficient housing would be built near stations to increase ridership and justify the investment of transportation dollars. Or, even if a city does take seriously its RHNA obligation to zone for new housing, it could decide to meet the RHNA requirement by placing new homes on the fringes of its city limit, rather than taking advantage of an opportunity to create walkable, mixed-use neighborhoods.
One can point to many other examples in which existing laws have had the unintended effects of exacerbating sprawl and encouraging driving. Suffice it to say is that there was plenty of room for improvement. One of the remarkable things about SB 375, then, is the way in which it compiled, amended, and harmonized a large array of state and federal statutes.
What is a Sustainable Communities Strategy?
The centerpiece to SB 375 is a new document created by the bill, called a Sustainable Communities Strategy (SCS). SB 375’s author, State Senate President Pro Tem Darrell Steinberg, who is from Sacramento, was inspired by an innovation of his home region called the Blueprint. The Blueprint made its way into SB 375 in the form of the Sustainable Communities Strategy. In December 2004, the Sacramento Area Council of Governments (SACOG) adopted a preferred blueprint scenario that promoted compact development and alternative transportation choices. The objective of the SACOG Blueprint was to accommodate projected regional growth while decreasing congestion, curbing air pollution, and preserving rural land.
This essential concept underlies the Sustainable Communities Strategy under SB 375. The heart of the SCS is a “forecasted development pattern” for the region, which will be informed by an inventory of existing land use throughout the region, as well as an identification of the parts of the region where future development can be concentrated, while still reducing VMT and GHG emissions. In order to realize the VMT reduction goal, development will need to be concentrated in the urban core and along high-quality transit corridors, including rail lines, major bus routes, and other prominent features of the regional transportation network. Business as usual sprawl, which can only increase VMT, is foreclosed.
SB 375 also requires that the SCS be aligned with the RHNA, and for the majority of California, housing allocation will proceed according to an 8-year schedule that aligns with the RTP schedule (instead of 5 years). The housing allocation that the MPO distributes to each local government must be consistent with the MPO’s vision for a VMT-reducing growth scenario. Local governments will then do as they do now: update their Housing Elements to include those additional units, and rezone as necessary. The primary difference is that the housing allocations will be designed to implement the forecasted development pattern in the SCS, rather than according to the older “fair share” standard.
One important aspect of the SCS is that it requires the MPO to accommodate all future population growth, including the need for additional housing brought about by employment growth, within its region. This requirement speaks to the issue of housing-jobs imbalance at the regional scale, a problem that encourages long driving commutes and thus increases VMT. One example of this phenomenon is how cities in the northern Central Valley, which feature housing more affordable than in the Bay Area, have emerged as “bedroom communities” that support jobs in the Bay Area. This has increased solo commuting along the heavily congested Interstate 580 corridor and increased VMT. The SCS attempts to deal with this problem by requiring that a region fully accommodate its own growth.
Another important aspect of the SCS is that it will be incorporated as an element of the RTP. Because of the requirement that the RTP be “internally consistent,” the SCS must be consistent with the RTP’s existing policy, action, and financial elements. In other words, policies, projects, and programs that increase VMT and promote sprawl — thereby contradicting the SCS — should not be funded.
But internal consistency is a two-way street, so the SCS must also be consistent with the financial element, including its projections for how much funding the MPO reasonably expects will be available in its region through the chosen planning horizon year. The SCS is thus subject to fiscal constraints. In drawing up a strategy to reduce regional GHG emissions, the MPO cannot incorporate programs in the SCS that it knows, based on the financial element, that the region cannot afford. The SCS must also reflect recent local planning assumptions. Thus, while the SCS should document how the region will implement land use planning in a way that improves over business as usual, the MPO must also bear in mind these limitations when developing the SCS.
How do greenhouse gas reduction targets work, and what happens if a target can’t be met?
Before an MPO prepares and adopts a Sustainable Communities Strategy, it will have received a regional GHG reduction target from the State Air Resources Board. ARB will issue draft regional targets by June 30, 2010 and final targets by September 30, 2010. Those targets will collectively account for the overall reduction that ARB expects can be realized statewide from the land use sector. Therefore, when the MPO plans and models what growth patterns are needed to reduce GHG emissions, it does so keeping in mind the goal of meeting ARB’s target for the region.
But as is typical of environmental legislation, SB 375 only requires that an MPO meet the regional target if it’s “feasible” to do so, and there’s a broad range of obstacles that could undermine feasibility– including economic, environmental, legal, social, and technological issues. The fact that an SCS is subject to the fiscal constraints of the RTP could certainly affect feasibility. For example, an MPO’s modeling work might reveal that building 100 miles of grade-separated rapid transit (and implementing associated land use changes) would allow the region to meet its target. But if the region cannot fund more than 10 miles of rapid transit, it is not appropriate for the SCS to depend on the full 100 miles in order to meet the GHG reduction target.
There is, however, an appropriate document in which to include the full 100 miles — the Alternative Planning Strategy (APS). In the event that an SCS is unable to meet ARB’s regional target, the MPO must prepare an APS that will meet the target. The APS should explain what barriers exist to meeting ARB’s target, and then present other ways the region could leverage land use and transportation tools that allow the region to achieve the target. Although those tools must be somehow “practicable,” the APS is an opportunity for an MPO to be more visionary about the future of its region. The MPO is specifically allowed to expand its field of vision in order to see what changes would be required to meet ARB’s target — even if that means assuming unrealistically optimistic land use and funding scenarios.
In some sense, though, the APS is a theoretical exercise in regional planning, because unlike the SCS, the APS is not an element of the RTP. In other words, the APS does not bind an MPO’s funding decisions, and the MPO technically need not implement it. Ideally, an MPO that needs to adopt an APS will regard it as a goal to strive toward.
Both the SCS and APS must be submitted to ARB for approval once finalized and adopted. ARB’s review of any submitted strategy is limited to approval or rejection, based on whether the strategy will actually achieve the level of GHG reduction that it purports to achieve. If ARB rejects a region’s SCS, the MPO must go back and either revise the SCS or prepare an APS instead. That process continues as long as is necessary to earn ARB’s approval. At the end of the day, every MPO in California must eventually have on its books an adopted SCS or APS that meets the ARB regional target.
When can I expect to see a Sustainable Communities Strategy in my region?
Each MPO will incorporate its new SCS as an element of the next RTP update. Because MPOs in California update their RTPs on different schedules, SCS adoption will likewise be staggered throughout the state. By 2014, every MPO in California should have adopted an SCS as part of its RTP, according to the following approximate schedule:
How does SB 375 affect the land use authority of local governments?
Other than the RHNA and a few other exceptions, a local government in California holds essentially complete powers over land use decision-making within its jurisdiction. Before SB 375 passed, some stakeholders were concerned that the bill would effectively result in regional government usurping the land use authority of local government. Language protecting local government powers was inserted into the bill, thanks to the intensive lobbying effort of the League of California Cities and local government advocates. This language indicates that the SCS/APS is not a land use regulation, and that nothing in SB 375 supersedes the authority of local governments. Notably, SB 375 does not even require that local governments amend their General Plans to be consistent with the RTP/SCS.
Practically speaking, though, SB 375 will make it tougher for cities to avoid certain regional directives. What SB 375 may lack in terms of mandates that bind local governments, it makes up for by creating incentives and placing indirect pressure on local government to cooperate with the bill’s new regional planning process. Remember the internal consistency requirement of the RTP? This consistency requirement effectively trickles down to cities and counties as well, because the MPO may only award funding to projects that are consistent with the SCS. Thus, the incentive of receiving federal funding — or, stated differently, the threat of being denied federal funding — gives local governments a good reason to regulate in a manner consistent with the SCS.
Also, as was made clear in recent litigation where a court struck down the City of Pleasanton’s Measure GG housing cap, the State’s RHNA requirement preempts local no-growth ordinances. The court’s decision in that case put cities throughout California on notice that attempts to limit the construction of new housing units — and in particular, affordable units — will not be tolerated by the State. This gives the State at least some control over local land use authority, and it would apply even if there were no SB 375.
But SB 375 adds still further constraints. It is true that a local government is not required to amend its General Plan to be consistent with an SCS. But under the RHNA, that local government is still required to amend its Housing Element and rezone its land in order to accommodate the quantity of housing it was assigned under the RHNA — and SB 375 requires that the RHNA be consistent with the SCS. In that sense, local governments will still be called upon to implement the SCS (via the RHNA), whether or not they want to.
Recalcitrant local governments may also be penalized in new ways under SB 375. The bill requires that a local government do its RHNA rezoning within three years after adopting its Housing Element. Failure to comply with this rezoning deadline not only subjects the local government to potential court sanctions, but it also precludes the local government from disapproving housing project proposals that comply with its General Plan. Also, if a local government misses the deadline for adopting its Housing Element by at least 120 days, it is required to update its Housing Element every 4 years (instead of every 8 years).
In light of both these incentives and penalties, it seems that practically speaking, cities and counties will feel new constraints under SB 375, in spite of any disclaimer language that preserves local land use authority. The hope, of course, is that the MPO will collaborate with local cities and counties to produce an SCS that is universally favored, thus increasing the likelihood that implementing the SCS will successfully reduce regional GHG emissions.
Single-family homes and suburban subdivisions are a California tradition. Why will developers suddenly want to build transit-oriented apartments? Aren’t apartments un-American?
Many developers in fact already specialize in building the type exact type of dense, urban infill development that SB 375 envisions. To entice others, SB 375 includes specific incentives for developers that build the “right” type of housing. CEQA requires that the potentially significant impacts of a new development project be evaluated in an EIR, along with mitigation measures and potential alternatives that reduce the impact of the project. The extensive analysis that is required for an EIR means that complying with CEQA can be very time-consuming and expensive. In order to motivate developers to forgo sprawl and instead pursue development that is harmonious with SB 375’s goal of reducing VMT, the bill reduces costs and barriers associated with building compact transit-oriented development. In particular, it streamlines and exempts from CEQA categories of development that meet specific criteria.
The bill creates a new category of development project, called a Transit Priority Project (TPP). A TPP is defined to be a project that (i) has at least 50 percent of total building square footage as residential use, and if 26 to 50 percent comprises nonresidential uses, then the non-commercial floor area (FAR) ratio is at least 0.75; (ii) has minimum net density of twenty units per acre; and (iii) is located within one-half mile of a major transit stop or high-quality transit corridor that is included in the RTP.
If a TPP meets a really long list of criteria — these criteria speak to the project’s size, impact on natural and historic resources, energy efficiency, open space, and affordable housing component — then it may be eligible for a total exemption from CEQA. In practice, many or most TPPs will have difficulty satisfying the full list of criteria necessary for an exemption. It is easier, however, for a TPP to qualify for streamlined CEQA review in the form of a Sustainable Communities Environmental Assessment (SCEA), which is a new type of environmental document created by SB 375. Under the SCEA, certain types of environmental analysis may be omitted: (i) growth-inducing impacts; (ii) project-specific or cumulative impacts from cars and light-duty truck trips generated by the project on global warming or the regional transportation network; or (iii) a reduced residential density alternative that would correspondingly reduce car and light-duty truck trips generated by the project.
Residential and mixed-use projects that are consistent with the region’s SCS or APS (whichever document has been approved by ARB) may also qualify for similarly streamlined review under CEQA. Such projects must generally have at least 75 percent of their building square footage designated for residential use, while incorporating applicable mitigation measures from a prior environmental document.
California has already tried to legislate its way out of sprawl before, and that seems to have failed. Why will SB 375 work when previous attempts have not? Or will it actually work?
Fair point. California has been at the sprawl game before. In 2002, the Legislature enacted Assembly Bill 857, which was an initial weak attempt to encourage a state policy of transit-oriented development. This bill can only really be described as a failure. It had little, if any, effect on land use planning — although SB 375 probably owes its existence at least in part to AB 857’s shortcomings. Notably, though, AB 857 lacked some of SB 375’s most important attributes, including its package of incentives and a regional/local government planning apparatus. These major distinctions between AB 857 and SB 375 discourage any serious comparison of the two pieces of legislation.
As for whether SB 375 will work — that is a big question, and no one really knows the answer. I won’t attempt to fully document my own opinion here, except to note that SB 375’s useful and even elegant solutions — while necessary to rationalize land use planning in California — may ultimately not prove sufficient to effectuate the ambitious changes that smart growth and environmental advocates hope will be realized. The initial 8-year planning cycle set in motion by the bill will no doubt be an important educational experience for all parties involved, including ARB, the MPOs, local governments, and the public at large. Litigation may resolve some ambiguities, and cleanup legislation may be required to correct practical difficulties that are uncovered during implementation. Moreover, SB 375 was also diluted in several respects as it worked its way through the Legislature — a necessary sacrifice in order to ensure its passage — so there may be opportunity in the future to strengthen SB 375’s requirements.
If California voters decide to suspend AB 32 because of high unemployment rates, will SB 375 also be delayed?
AB 32 is opposed by a contingent who believes that implementing AB 32 will harm California’s economy by increasing business costs and unemployment. In May 2010, it was announced that the proposed ballot measure, the California Jobs Initiative, had collected more than enough signatures to be placed on the November 2010 ballot. In November, Californians will be asked to vote on whether AB 32 should be suspended in tough economic times. Given that implementing SB 375 is one of many strategies that California is pursuing to comply with AB 32’s GHG emission reduction requirements, a natural question is what effect, if any, potential suspension of AB 32 would have on SB 375. Would SB 375 also have to be suspended?
SB 375 will likely not be suspended, even if voters do approve suspension of AB 32. The AB 32 ballot measure, if approved by California voters, would do two things:
Neither of the above provisions should affect SB 375. As to the first provision, SB 375 amended and added sections to the Government and Public Resources codes; it is therefore fully separate from AB 32, and the ballot measure does not propose any suspension of SB 375 code provisions. As to the second provision, SB 375 does not call for regulation from a state agency. Under SB 375, the State Air Resources Board is called upon to carry out clearly specified tasks. In addition to advising and exchanging information with MPOs, SB 375 requires that ARB carry out two primary types of action: (i) establish regional GHG targets, and (ii) approve or reject within its limited scope of review any SCS or APS that is submitted by an MPO. Neither action constitutes a “regulation.” Therefore, the second provision in the ballot measure also should not have any effect on SB 375.
It is of course true that SB 375 explicitly references AB 32, and it’s clear that the Legislature envisioned ARB using SB 375 as part of its efforts to implement AB 32. In addition to a specific reference to AB 32 in the legislative findings, SB 375 instructs ARB to take into account Pavley, the Low Carbon Fuel Standard, and other GHG reduction measures when setting regional targets. In other words, ARB is required to fit SB 375 into its overall strategy of implementing AB 32. Despite this explicit connection between AB 32 and SB 375 contained in the legislation, this is not enough of a connection to require that SB 375 also be suspended (should AB 32 be suspended). Although SB 375 is clearly harmonious with the goals of AB 32, the former remains independent of the latter. It is conceivable that ARB would revise its regional targets upon facing a suspension of AB 32, but the overall regional target mechanism is still meaningful without AB 32 in place. Indeed, the full planning process and incentive package established by SB 375 is coherent without AB 32. SB 375 is a separate piece of legislation that employs techniques quite different from the command-and-control style of regulation disliked by AB 32’s opponents. Even if the AB 32 ballot measure does ultimately pass and AB 32 is suspended, SB 375 should not have to suffer the same fate.
How can I participate?
Glad you asked! SB 375 includes several requirements designed to ensure that the process of creating the Sustainable Communities Strategy is carried out with full public input and transparency. The most successful Sustainable Communities Strategy will be the one that is created through a collaborative effort of regional agencies and local governments, while incorporating input from engaged members of the public. All interested citizens are therefore encouraged to attend workshops and contribute to the future of their communities and regions. Keep your eyes peeled for workshop announcements from your local MPO.
If you have a question that’s not here but that you’d like answered — well, it’s possible that your question doesn’t have an answer, because the bill leaves many important questions unanswered. Nonetheless, if you have a particular question, it’s likely that someone else does as well. If you get in touch, I might just be able to add your question and an answer to this page.