Post Sustainability Institute: The Surviving Lawsuit

Soon after the Association of Bay Area Governments (ABAG) and the Metropolitan Transportation Commission (MTC) approved Plan Bay Area in July 2013, opponents of the Plan filed lawsuits.  Of the four lawsuits filed, two were settled out of court, one lost on appeal, and one is still active and awaiting oral arguments at the California Court of Appeals District 1.

The surviving legal challenge to Plan Bay Area is The Post Sustainability Institute et al. v. Association of Bay Area Governments et al, Case, No. A144815.  At present, the last Order filed was on 01/30/18, in response to an MTC/ABAG (Respondents) request for dismissal of the case.  The Order:

Respondents' motion to dismiss appeal and request for judicial notice in support thereof, filed on August 14, 2017, which are opposed, are taken under submission and will be decided with the merits of the appeal.

In other words, the case is still alive, and we at the Nine-County Coalition hope our readers consider supporting the efforts of the Plaintiffs, Rosa Koire and Michael Shaw, in moving this case forward.  You can find more information on the case at

Background: What is this Case About and Why Still in Appellate Court?

Unlike the other three lawsuits filed against ABAG and MTC, this case seeks to prove that Plan Bay Area claims to be able to accomplish an unfeasible feat, denies Bay Area residents equal protection, undermines private property, and aims gradually to modify California’s Constitutional representative government to allow for rule by unelected bureaucrats.  

The Globalization of California website explains the central Constitutional issues involved in this case.

“The real question is, is the Appellate Court going to protect the Constitutional form of government in California?

The structure of government is the issue raised by our lawsuit.  The Court’s facing a tough decision, because to do the right thing, it has to neutralize AB 32 and SB 375, and neutralize ABAG — the COG creating the prototype designed to globalize America through unelected and unaccountable councils.

Thus, the long delays, since a lot is at stake.  However, regardless of the Appellate Court’s decision, the losing party will appeal to the State’s Supreme Court.

Attorneys in the Case

Principal attorney for Plaintiffs/Appellants Rosa Koire and Michael Shaw is Timothy V. Kassouni of Kassouni Law.  The law firm engages in several practice areas, among which are Constitutional Law and Land Use Law.

Principal attorney for Respondents ABAG/MTC  is Tina Thomas of Thomas Law.  The firm also has several practice areas, including Environmental Law and Local Government Law.   Ms. Thomas’ bio on the Thomas Law website reads,

Tina’s work extends beyond the traditional role of attorney, shaping not only land use legislation, but also the way it is practiced and understood…Additionally, Tina played an extensive role in the passage of California Senate Bill 375, authored by Senator Darrell Steinberg, which encourages smart growth and infill development.

Links to Opening Briefs

Post Sustainability Institute et al v. Association of Bay Area Governments et al filed opening briefs worth reading.  The briefs sum up what is at the heart of Plan Bay Area’s egregiousness from a Constitutional framework point of view. We summarized the opening brief in the initial California Superior Court filing as introduction, and quoted the “Conclusion” of the opening Appellate Court brief.  Read More.

Moving this Case Forward

The Nine-County Coalition has received communications from Bay Area residents unhappy with the relentless bureaucratic talk about "sustainable communities," cities' and counties' loss of local control over land use, upending of neighborhoods due to imposition of transit-oriented development, and numerous bills enabling further entrenchment of the Plan Bay Area concept.  One way to fight is to litigate.  May  we count on your support of Post Sustainability Institute et al v. Association of Bay Area Governments et al?

 "We the People" does not mean people living in certain areas enjoying the benefits of transit and economic development.  It means all the People.

"We the People" does not mean people living in certain areas enjoying the benefits of transit and economic development.  It means all the People.

AB 2923: Mission Creep Forges Ahead

California Assembly Bill 2923 BART Transit Oriented Development, authored by David Chiu (San Francisco) and Timothy Grayson (Concord) and now in committee process, stands as a good example of mission creep. 

Were this bill among only a few deserving such label, one would have small cause for concern.  However, the list of bills and measures replacing city and county land use rules with state rules keeps growing.  Way back in 2008, California Senate Bill 375 declared green house gas emissions a threat that needed to be dealt with through land use policies – bunch up housing, prevent sprawl, and decrease automobile use. Since then legislators have churned out innumerable transportation, housing, and climate change bills that keep growing in scope and forcefulness:  mission creep.

Mission creep is the expansion of a project or mission beyond its original goals, often after initial successes. Mission creep is usually considered undesirable due to the dangerous path of each success breeding more ambitious attempts, stopping only when a final, often catastrophic, failure occurs. The term was originally applied exclusively to military operations, but has recently been applied to many different fields. Wikipedia

The Scope and Forcefulness of AB 2923

Here is what AB 2923 says it does:  “Requires the San Francisco Bay Area Rapid Transit District (BART) to adopt transit-oriented development (TOD) zoning standards on specified parcels of land it owns, and requires affected cities and counties to update zoning to be consistent with BART’s zoning standards within two years.”  

More specifically, the bill states among several of its clauses,

* Requires, where local zoning is inconsistent with the TOD zoning standards, the local jurisdiction to adopt an ordinance that approves the application of the TOD zoning standards within two years of the date that the TOD zoning standards were approved by the board.

* Requires the local zoning ordinance to conform to the TOD zoning standards without the application of any bonuses or waivers allowable under any state or local density bonus provisions.

* Requires the board to make a finding as to whether the local zoning ordinance is consistent with the TOD zoning standards.

In other words, you will have transit oriented development in your neighborhood whether you like it or not.

How Deep Does AB 2923 Go?

The bill authors' comments as quoted on the bill's Analysis, Assembly Committee on Local Government:

* BART committed itself to fully building out the land it owns around its stations by 2040 to produce over 20,000 new units of housing, of which 7,000 will be affordable, and 4,500,000 sq. ft. of office and commercial space, including child care and educational facilities.

* Historically, TOD projects have taken too long - often more than a decade - with jurisdictions demanding less housing and too much parking for transit adjacent development.

The Committee's own comments contained in its Analysis, verbatim:

* BART is also authorized to use eminent domain to acquire property, and can also dispose of property when it is in the best interest of the transit system… and hold and enjoy, real and personal property of every kind within or without the district that is necessary for transit-oriented joint development projects on property within ½ mile from the external boundaries of a BART facility to use for TOD.

* TOD projects on BART land will meet a minimum net residential density standard of 75 units per acre, reduce auto use by lowering parking requirements below one space per unit on average and 1.6 spaces per 1,000 square feet of office space, and strive to provide incentives to take transit, bike and walk.

Roadblocks expressed in the Analysis:

* The California Constitution, pursuant to Article XI, Section 7, states that a city or county may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws (special districts do not have land use authority). This power is often referred to as the ‘police power…’ One way that cities and counties use this authority is through zoning…

* Cities with voter-approved charters have additional home rule authority over their municipal affairs…  The provisions of a city charter and ordinances adopted by a charter city prevail over general state law in areas that a court determines are municipal affairs.

* Government Code 53096 contains provisions that allow the board of a local agency, by vote of four-fifths of its members, and in spite of the provisions above, to render a city or county zoning ordinance inapplicable to a proposed use of property if the local agency at a noticed public hearing determines by resolution that there is no feasible alternative to its proposal… In this manner, it may be that BART has the authority to exempt itself from local zoning by the affected city or county, but only for its own facilities, and not for private projects like TOD mixed-use developments.

And suggestions how to overcome those roadblocks, again all verbatim:

* Override of Police Powers Delegated to Cities and Counties

* Establishes Precedent for Future Diminishing of Local Land Use Planning.

* Charter cities enjoy supremacy over their municipal affairs. This bill does not contain any provisions declaring that the contents of the bill are a 'statewide affair' – which would then apply the requirements of the bill to charter cities in addition to all general law cities.

* The Committee may wish to ask the author about his intent to include charter cities in the bill. The Committee may also wish to note that while the Legislature can declare its intent to apply provisions of a bill to charter cities, the true determination of whether a specific area is a municipal affair or a matter of statewide concern will be determined solely by the courts.

BART position as contained in the Analysis:

* BART has a ‘Neutral’ position on the bill, and notes that the bill ‘could benefit BART’s TOD program by accelerating the rezoning of sites for residential and mixed-use development…however, this approach this bill takes poses a shift in the working relationship between BART and its local jurisdictions.’

Quote from the Analysis' section, Why BART-owned parcels only?

* The bill deals specifically with parcels of land that BART owns, near existing BART stations. The Committee may wish to consider why increasing density in this manner should only occur around BART stations, as opposed to parcels that are NOT owned by BART that are near existing BART stations.


According to the bill Analysis by the Assembly Committee on Local Government, the affected parcels of BART-owned land are located in the following cities:

Charter Cities:  Berkeley, El Centro, Hayward, Oakland, San Francisco (City and County of), and San Leandro.

General Law Cities:  Fremont, Pleasanton, Dublin, Antioch, Pittsburg, Lafayette, Concord, Union City, and parcels in Alameda County.

So, California legislators have proposed a bill they know infringes on cities’ police powers and charter cities’ home rule authority, but are ready not only to override those constitutional rights, but also to expand the mission of the bill beyond BART-owned land.  Mission creep at its best.

Read More

Read More:  The basics on BART Transit Oriented Development in our article Meet Your New Landlord: Bay Area Rapid Transit. 

TOD Pleasant Hill/Contra Costa

Pictured:  Pleasant Hill/Contra Costa Transit Center TOD.  The first phase of this project is completed, with more to come. 

An obvious challenge:  During peak hours, BART cars are crowded, yet a considerable number of additional riders should be expected with expansion of Transit Villages.  State legislators and the BART Board are counting on hoped-for future sources of sufficient revenue to fund fleet growth.

"Traffic Plans" and Fundamental Laws of Congestion

Legislators, planners, experts, and advocates have identified plenty of cures for ridding highways and roads of the slow traffic that robs commuters of their time.  Here we offer some random observations.

Cure All:  Generous Investments in Public Transit

 Best:  Redfin Survey 02/21/18                                   Worst: Inrix Global Scoreboard

Best:  Redfin Survey 02/21/18                                  Worst: Inrix Global Scoreboard

The chart on the left shows 2017 ranking of the top 10 U.S. cities with populations of more than 300,000 for public transit.  The chart on the right shows 2017 ranking world-wide of U.S. cities with the worst traffic congestion.  The highlighted cities could claim that were it not for their considerable investment in public transit, traffic would be much worse than it is.  Others could claim adding transit does little to affect automobile traffic.

Ridership Trends

Of the 10 cities ranked as best for public transit in the chart above, only Seattle gained in transit ridership from 2016.  It appears that being among the “best” does not guarantee being effective.

How Much Would You Pay to Ride the Bus?

Somebody Has to Pay

If you take public transit in Los Angeles, you probably need to spend around 8.69% of your income to purchase your monthly transportation pass.  That is a considerable percentage.  However, Los Angeles Mayor Eric Garcetti seems to be looking for ways to raise that percentage even further.  On a 2016 interview with Newsweek, Garcetti laid out his vision of what Los Angeles transit would look like by the time he leaves office.

The centerpiece of Garcetti’s vision is Mobility Plan 2035, released last summer, its name a subtle allusion to the immobility that now grips every corner of this huge and restless city. The new mobility would come at the expense of the car. There is also Vision Zero, an initiative to eliminate traffic fatalities modeled on Stockholm’s program of the same name. Los Angeles also has Great Streets and Complete Streets and People St, all different plans to fight the same four-wheeled enemy. There will be a subway to the sea, finally. There are now bus shelters with smartphone chargers.

Sounds like cost of transit as a proportion of personal income is about to climb higher than the current 8.69%.  Or maybe Garcetti plans to have automobile commuters across the Los Angeles River bridges pitch in?

The Fundamental Law of Highway Congestion

Way back in 1962, transportation researcher Anthony Downs declared that the fundamental law of highway congestion would cause any empty or near empty highway lane to soon fill up with automobiles.  You build an extra lane, and extra cars will soon populate it to capacity. 

In 2011, a team of three researchers declared that Anthony Downs’ law could extend to roads around and within cities, and the fundamental law of road congestion was discovered.  If a newly-built lane that starts out empty is soon filled up with cars, then an old lane made nearly empty by government edict will also soon fill up as well.

Say, legislators and bureaucrats succeed in getting everybody walking, biking, carpooling, and taking public transit; then the presence of single-occupancy automobiles would decrease, leaving room for walkers, bikers, carpoolers, buses and rail transit to zoon by.  Given the fundamental rule of road congestion, it would not be long before single-occupancy cars also started zooming by, taking advantage of the now empty spaces.

You Can Lead of Horse to Water, But...

Transit advocates say that the pesky laws of traffic congestion can be eliminated by changing people's behavior.  Maybe, but past experience shows us differently.  Here is a recent Los Angeles experience, reported in the Los Angeles Times, that should give some pause to Mayor Garcetti and others on a mission to eliminate cars:

Despite a growing population and a booming economy, the number of trips taken on Los Angeles County's bus and rail network last year fell to the lowest level in more than a decade….

Experts and officials have no firm answers, but have attributed the decline to a combination of factors, including changes to immigration policy, competition from Uber and Lyft and more people buying cars — as well as perceived problems with existing transit service and security.

It appears that although a segment of residents in any city will always be committed to walking, biking, and riding public transit, what we see in majority behavior is that as soon as people can, people will ride cars. 

So Are We Stuck With Gridlock?

If the type of central planning now in vogue - primarily shabby transit oriented development, accompanied by the concentration of jobs in a few locations - persists, it will be difficult to improve the traffic situation. 

Beyond Senate Bill 827

SB 827 and Beyond

Thank you to the Coalition for San Francisco Neighborhoods for presenting on April 28 SB 827 and Beyond.  This excellent panel discussion included four long-time advocates of neighborhood activism: Art Agnos, former Mayor of San Francisco; Zelda Bronstein, former Berkeley Planning Commissioner; Calvin Welsh, educator and affordable housing advocate; and Sophie Maxwell, former San Francisco Supervisor. All spoke ardently of the need for neighborhoods to be aware of events occurring at the state level, decide what planning makes sense for their neighborhood, organize, and oppose what does not make sense.

The purpose of this panel discussion was to point out that the demise of Senate Bill 827 was only a blip in the barrage of bills emanating from Sacramento intended to remove control of land use from cities and counties.  Therefore, neighborhoods need to organize and form coalitions far and wide to redefine the terms of the housing argument.

Defining the Argument is Winning the Argument

The current argument is that a certain number of housing units determined by an all-knowing entity must be built in each and all cities and counties.  This argument depends on our accepting the definition of the state having absolute control over land use.

A redefinition of the current argument would state that an informed electorate has ultimate control.  Voters not only have the basic rights of summarily kicking people out of office who perform against constituents’ best interests, but also have the power of referendums and initiatives.  

Remember Washington 8?

Way back in 2012 developers were all set to build Washington 8, a luxury 12-story high-rise on The Embarcadero, San Francisco’s beloved waterfront.  The project was labeled by opponents "Wall on the Waterfront." 

 Fontana Towers at the end of North Point, San Francisco

Fontana Towers at the end of North Point, San Francisco

Memories of views lost when Fontana East and West went up on the waterfront at the end of North Point surfaced in the minds of those around in the 1960s.  Nob Hill residents who paid premium for their properties were not happy either with the Washington 8 developers or with the City’s Board of Supervisors who changed height limits to allow for the development of Washington 8.  Neighborhoods across the City decried “Manhattanization” of the Waterfront.

So, coalitions were formed, and opposition to the Wall on the Waterfront grew.

Sensing resistance, Washington 8 developers placed an initiative, Proposition B, on the November 2013 ballot:  Shall the City allow a development project at the 8 Washington Street Site that would include new housing, retail and recreational facilities, and open space, and would increase the legal building height limits on a portion of the site?  Nobody was fooled, and Proposition B was soundly defeated.

Also down in flames went Proposition C, a referendum presented by opponents of Washington 8 in the form of this question:  Shall the City ordinance increasing legal building height limits on an approximately half-acre portion of the 8 Washington Street Site along Drumm Street take effect?   Voters just said NO.

Art Agnos and the Coalition for San Francisco Neighborhoods signed fiery Opposition Arguments on Propositions B and C.  Mr. Agnos firmly reminded the audience at SB 827 and Beyond that the Washington 8 saga can serve as a model when the majority of voters are not happy with legislation.

Where Are the Facts?  Where is the Spirit?

Zelda Bronstein spoke about the avalanche of legislation whittling away city and county control of land use, and the dearth of journalists writing about it.  As a journalists herself, Ms. Bronstein does write about such matters as the growth of unelected bureaucracies, unaccountable to voters, that carry out the details of state legislation.  Information is a vital tool necessary to make informed choices at the ballot box.

Calvin Welch, educator and housing advocate, presented intriguing statistics showing how housing prices increased, not decreased, while supply increased in San Francisco.  Mr. Welch noted that in order for the principles of supply and demand to work, markets need to be free, and populated by willing buyers and sellers possessing equal power to influence price.  Therefore, a market like San Francisco’s, or any other not possessing the needed characteristics of a free market, must allow for intervention if housing at all levels is desired.  Mr. Welch suggested interventions must include not demolishing viable existing housing and requiring large businesses to provide housing for their employees.  

Sophie Maxwell made clear that neighborhood leaders must incentivize residents to be active participants in planning processes.  Everyone should be welcomed in the dialogue, differences worked out, exclusion avoided.  Ms. Maxwell noted that although arguments must be made clearly and forcefully, they must also avoid negative influences such as ageism and other divisive methods.  

The Takeaway

Reach out, organize, because SB 827 has not really gone away but is only waiting to return.

Update: SB 828 Sails Right In

Today, Tuesday 24th, Senate Bill 828, containing and enforcing essentially the same housing strategy as SB 827, sailed right through the Transportation and Housing Committee hearing.  While during last week's hearing several committee members expressed opposition to SB 827, the silence today from most committee members was deafening.  Senators Beal, Allen, McGuire, and Gaines spoke of their "concerns," such as the fact that Regional Housing Needs Allocation (RHNA) is unfunded -- we need money there!  If it sound that legislators are back to business as usual, they are. 

Time for Change

The takeaway might be that if the big concern according to those who spoke at the hearing is that money is needed to fund RHNA mandates, then opposition strategy could include ensuring that not a penny goes towards RHNA funding!

Populations grow and wane.  Cities and counties need to adapt to growth and contractions.  But why all this angst?  Why the strategies set in stone that do not achieve their expressed objectives?  Is it time for residents to demand different approaches?

Demise of SB 827 But More to Come in SB 828

California Senate Bill 828 will be heard by the Transportation and Housing Committee on Tuesday, April 24, 2018.

For a quick summary of the bill and concerns over it, see article Now There is SB 828.  A good reason why we need to pay special attention to this proposal is here:

Demise of SB 827

The alliance of otherwise disparate groups in the “local control” movement enjoyed a major triumph on April 17, when Senate Bill 827, introduced by California Senator Scott Wiener in January 2018, suffered a compassionate but swift demise before the Senate Transportation and Housing Committee.  While bemoaning the state’s astronomical housing costs and thanking Senator Wiener for his aggressive proposal, committee members killed the bill with a 6-4 vote (3 members did not vote on this bill).

The lineup up of members of the public speaking for and against SB 827 at the April 17 hearing might be categorized as developers, real estate professionals, and big business in the YES corner vs. neighborhoods, lower-income housing advocates, and representatives of elected city officials in the NO corner.  

Senator Wiener, as well as his pro-development supporters, vowed to continue their fight for high density along transit corridors.

The Crisis That Will Not Go Away

Issues have a tendency to enjoy their five minutes of fame then fade from public consciousness.  However, California’s housing crisis seems to be here to stay.  Not only has this issue been long lasting, it has also been intense. Redevelopment, which aimed to tear down certain neighborhoods and build lots of new stuff was implemented in the 1950s.  The strategy suffered a crippling blow with its razing of San Francisco’s Fillmore District, and died an ignominious death upon discovery that the millions intended for low-income housing instead financed high-end golf courses and other amenities.  Although California’s Redevelopment Agencies officially died in 2011, redevelopment goes on, apparently eternally, as fixes to the equally seemingly eternal housing crisis.  

Observe the major concerns over legislation such as SB 827 expressed by housing advocates:  displacement and gentrification.  Ask any old timer that remembers what happened in the 1950s and 60s to The Fillmore:  displacement and gentrification.  It is one thing for neighborhoods to evolve organically via gradual market forces. It is another thing for central planning to force change through fervent mandates in order to achieve whatever policy is in vogue at the time.  

A Pretty Good Formula

Money and climate change

The San Francisco Bay Area has been especially adroit in manipulating housing policy through Plan Bay Area, but similar policies prevail throughout California.  Ask 100 people what are Plan Bay Area’s objectives, and there will probably be 100 different responses, including clean air, conservation, stopping climate change, globalism, power over we the people, abdication of power by elected officials, or a combination of all of the above.  Included in such responses should be the tendency of government entities to benefit the more powerful, pay some bills, and show economic growth.

“Follow the Money” is a frequently stated aphorism. There is money fighting climate change, for instance, but a lot more money to pass around in economic growth. 

If legislators can combine fighting climate change with promoting economic growth, they have a pretty good formula.

The Formula: Density!

Companies participating in national or global marketplaces benefit from being able to locate near existing pools of workers with relevant skills who they can hire. Workers benefit from being able to live in places where multiple employers need to compete for their labor…The deeper labor markets provided by density allow people to find jobs they are better at and that make them happier, while people being in proximity to one another allows them to be more innovative and productive.  There’s No Good Alternative to Building More Homes in Expensive Cities, by Matthew Yglesias, Vox 4/20/18

*  Walkable neighborhoods, parks and open spaces can generate economic benefits to local governments, home owners and businesses through increasing property values and related property tax revenues.

*  Open spaces such as parks and recreation areas can have a positive effect on nearby residential property values, and can lead to proportionately higher property tax revenues for local governments.

*  Compact, walkable developments can provide economic benefits to real estate developers through higher home sale prices, enhanced marketability and faster sales or leases than conventional development. 

**From Economic Benefits of Open Space, Recreation Facilities and Walkable Community Design, by Lilly Shoup and Reid Ewing, March 2010, abstract reproduced in American Trails.

We point to legislation as well as Plan Bay Area's strategies of building dense Priority Development Areas while enforcing vast Conservation Areas.  We also point to a massive budget (something for everybody), ever-increasing public pension unfunded liabilities, widespread homelessness and other public assistance challenges that necessitate considerable economic growth that can generate high taxes, fees, and other venues for California's public funding.  Sounds like density might be a formula for increasing rather than decreasing housing costs.

Density, Growth, and the Housing Crisis

If density is viewed as a significant engine of the economic growth necessary to support California’s spending, then draconian legislation that forces all cities and counties to build in severely restricted areas seems likely to continue unabated.  

Thus, we have seen numerous bills mandating counties to build their “fair share" of housing, a war on cars and parking spaces, Conservation Areas that prevent outward growth, taller buildings unwelcome in single-family neighborhoods, and super-tall construction in unstable land fill areas (exemplified by San Francisco’s sinking and leaning Millennium Tower).  

And there is more to come.  On April 24, 2018, the Senate Transportation and Housing Committee will hear SB 828, also introduced on January by Senator Scott Wiener.  

By expanding the duties of local governments relating to the housing element program and the final regional housing need plan, this bill would impose a state-mandated local program.

The opposition to SB 828 has not been as forceful as opposition to SB 827, an understandable situation since residents fighting against gentrification or for control of their neighborhoods have day jobs and few deep pockets to sustain such prolonged fights.  However, the outcry over SB 827 might have placed legislators on notice that residents have the last word come election time.  Also, alliances formed to oppose SB 827 hopefully will continue, to show opposition to SB 828 and similar mandates sure to come.

Senate Bill 827 is Dead for Now

The Senate Transportation Committee met today to consider Senate Bill 827, the bill that proposed to solve California’s housing shortage by preempting the zoning laws of cities and counties.  Transportation Committee members were willing to say there was a housing problem; however, by 6-4 they understood SB 827 was not a rational solution. 

Cities and counties were not willing to give away to the extent SB 827 required their right to determine what gets built where, so a veritable movement emerged and won.  The San Francisco Examiner published one of the first articles right after the NO vote: Bill Allowing Taller Buildings Near Transit Dies in Committee.

Plan Bay Area 2050 Coming Your Way

Plan Bay Area 2050


Plan Bay Area has become a way of life since its adoption in 2013.  This housing, transportation, resiliency, social justice, climate-governing regional plan is intended to evolve through its regularly-scheduled review and update process.  As the Plan evolves the laws of nature will cause it to become increasingly centralized, complex, and outsized.  Necessarily, as that progression occurs cities and counties will gradually leave behind their decision-making responsibilities as well as their duty to respond to residents’ wishes and concerns.  Such progression can already be detected in differences between Plan Bay Area 2013 and the current 2040 version.  Now, Plan Bay Area 2050 is on its way to your city and county.

MTC Public Participation Plan  

As the San Francisco Bay Area’s Metropolitan Planning Organization (MPO), the Metropolitan Transportation Commission is tasked with developing and conducting Plan updates.  One of the first chores to be accomplished in the update process is implementing a “Public Participation Plan,” and first on the list is getting public participation on the Public Participation Plan.  This from the MTC website.

What are the best ways to encourage Bay Area residents to participate in planning for the region’s future? You can tell us by reviewing and commenting on MTC’s Draft 2018 Public Participation Plan…

MTC’s Draft 2018 Public Participation Plan highlights opportunities for Bay Area residents to engage in the range of the agency’s planning work and funding allocations.

Therefore, the Metropolitan Transportation Commission is looking for public participation on the “Draft Public Participation Plan for the San Francisco Bay Area.” Deadline for comments is May 7, 2018. Please send comments to the Metropolitan Transportation Commission:

By mail:
Metropolitan Transportation Commission
Attn: Public Information Office
Bay Area Metro Center
375 Beale Street, Suite 800, San Francisco, CA 94105

By email:

The Interesting Part of the Participation Plan

MTC’s Draft Public Participation Plan lists all ways residents can participate -- by accessing documents from the MTC library available at 375 Beale St or on the MTC website, attending public meetings, joining workshops, etc.  

Also the Participation Plan lists federal and state mandates that govern MPOs, the planning process, and plan objectives.  Emphasis on such mandates implies MTC can listen, but it really cannot substantially act on any of what it hears!  Here are three such mandates.

*  Fixing America’s Surface Transportation Act:  This federal act requires metropolitan planning agencies such as MTC to “provide citizens….with a reasonable opportunity to comment” on transportation plans and programs.  Thus, the MTC must go through the public comment ritual.

*  EO 12898 Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations:  State agencies created under federal requirements, such as the MTC in its role as the Bay Area’s Metropolitan Planning Organization, must make achieving environmental justice part of their mission.

*  Senate Bill 375 Sustainable Communities and Climate Protection Act:  This state law “calls on MTC and the Association of Bay Area Governments to develop a Sustainable Communities Strategy — as part of the Regional Transportation Plan — to integrate planning for growth and housing with long-range transportation investments, and to reduce per-capita Carbon Dioxide (CO2) emissions from cars and light trucks.”

Planning for Plan Bay Area 2050

Development of Plan Bay Area 2050 will take place over the next three years.  Public participation is critical to ensure an open process, in which all interested residents have the opportunity to offer input and share their vision for what the Bay Area will look like decades from now.

Given that the Public Participation Plan so frequently mentions that MTC must operate under numerous federal and state mandates, it appears the Plan might perceive residents’ vision for what the Bay Area will look like in the future as limited to what is already on the Plan.

However, that is no reason to remain silent.  Forceful indication that there are residents not happy with regional planning would encourage moderation in MTC's behavior.  Forceful and organized displeasure expressed towards all levels of centralized governance – federal, state, and regional – is bound to invoke reversal of the current planning trend.

Cynicism and Brazenness?

MTC’s Draft Public Participation Plan contains the following introductory sentiment – verbatim:

Metropolitan Transportation Commission
Public Participation Plan

"I know of no safe depository of the ultimate powers of the society but
the people themselves; and if we think them not enlightened enough to
exercise their control with a wholesome discretion, the remedy is not to
take it from them but to inform their discretion."
— Thomas Jefferson

How is all that people power working out for you?

Regional Measure 3: Empty Promises

By: Linda Koelling, Former Mayor Foster City

It can be said, that when the government is careless with the money of its citizens, it is careless with their future. You may be familiar with Regional Measure 3, which states that if approved by voters, a pot of money will be used to mitigate traffic congestion. Like many previous measures, it is a misleading and egregious narrative.  When you look at the countless number of tax initiatives and fees that have been brought before the taxpayers for the past several years and continue coming, you can't help but wonder where the money is really being spent.

Regional Measure 3, on the June ballot, is deceptive and bureaucracy out of control. Its multi-purpose promises regarding a variety of improvements will make it difficult to hold legislators accountable.  This laundry list of various promises is being created for each of the nine bay area counties. So, the question is, which county will see any or all fulfilled?  

It’s noteworthy that $1 million dollars of this money, will go toward creating an unelected group to have authority over these funds. A group who does not have to answer to the voters. Ask yourself, how will the rest of the money get divided, in which area and in what time frames?

Let’s consider the commuter who works in San Mateo, Santa Clara or San Francisco counties but must live across the bay because he/she can’t find housing or afford to live here. These are the ones who will have to pay the price with the bridge tolls up to $9 plus a recent 12 cents a gallon gas tax increase. How long will it be economically feasible for an employee to continue working in the area with these increases?

In addition, how will the company who employs that commuter continue to stay in business given that salaries will need to be raised to keep those employees and in turn those costs get passed on to consumers. Small businesses will not last.

Not a commuter? Those who live in San Mateo, Santa Clara and San Francisco Counties may not think this toll increase will affect them. It will! You will still pay the high price because truckers who use the bridges to bring food, clothing and other goods to market will also have to pass along higher rates to YOU, the consumers.

Consider the messages of previous fees and taxes that were passed by the voters. They all said the revenue would go towards fixing streets, roads and transportation. But has it? It’s time to follow the money. These promises sound good but rarely come to fruition. Be prepared for more sales tax increases coming soon and being sold for the same reasons. By the way, if this initiative is passed, the state can continue raising bridge tolls based on inflation and without voter approval in the future.

We are definitely not steering a common-sense course for the Bay Area when it comes to growth and development in our cities and communities. Raising bridge tolls through RM 3 is only a band aid solution to a bigger problem, a lack of appropriate infrastructure to accommodate the massive push to urbanize all the suburban areas in the Bay Area. Lawmakers put the cart before the horse with all the building in the area. It is a flawed attempt to control the masses of people in the name of economic growth and sustainability.

It’s time to make the government in Sacramento accountable to the people they serve. Don’t listen to the continued empty promises. Follow the money! Vote NO on raising the bridge tolls. NO on RM 3.

RM3 Flyer

New RM3 Flyer for printing and distribution or posting on your website.  Contributed by a Nine-County Coalition participant.  Download.

RM3 Opposition: Quieter Than it Should Be

Regional Measure 3 on the June 2018 ballot is in the same position as was Regional Measure AA in 2016 -- enjoying the strong support of large businesses in general and of technology giants in Silicon Valley and San Francisco in particular.  From the website of the Silicon Valley Leadership Group,

To assist in carrying out an impactful effort to pass RM3, the coalition has selected a seasoned campaign team, who recently ran the successful nine-county Measure AA campaign. Measure AA was a ballot initiative to restore wetlands throughout the Bay Area generating $500 million over 20 years for critical tidal marsh restoration projects around the Bay Area.

The campaign money being poured into promoting RM3 to ensure its success at the ballot box is as impressive as it was with Measure AA. Here are some figures from a Matier & Ross article in the SF Chronicle.

The Regional Measure 3 campaign — whose backers include Facebook, Salesforce, Google and a number of other businesses — had its informal kickoff the other day, when Sen. Dianne Feinstein announced her support during a “fireside chat” hosted by the tech-boosting Silicon Valley Leadership Group... So far, the campaign has amassed a $2 million war chest, including $350,000 from Facebook, $250,000 from Kaiser Permanente Health Care, $125,000 from Dignity Health Care and $125,000 from Salesforce.

As with Measure AA, passage of RM3 would greatly benefit Silicon Valley.  Measure AA promised to protect the South Bay perimeter against sea level rise, and RM3 promises to increase transit choices to Silicon Valley (BART to Silicon Valley).  Outlying counties like Solano or Napa might not benefit as much from RM3.  But even if all voters in several counties vote NO, RM3 could still pass, since passage depends on an aggregate simple-majority YES vote from of all counties combined.

So we have a measure that lacks equity, fiscal restraints, and perhaps the legal authority to call itself a user fee rather than a tax or to include an inflation adjustment.  We have big names like the Silicon Valley Leadership Group, the Bay Area Council, and SPUR generating big money and good vibes for the measure, all while the article from Matier & Ross quoted above indicates "there has been no organized opposition."  Well, except there is some opposition.  The article does mention that U.S. Representative Mark DeSaulnier (D-Concord) and State Assembly Member Catharine Baker (R-San Ramon) do oppose.

The projects they are talking about are all over the place and are based more on political relationships than on transportation engineering.  Mark deSaulnier

State Assemblywoman Catharine Baker, R-San Ramon, is also opposed, largely because the measure allows for automatic toll increases in the future based on inflation.  “And they can do it without any vote of the people or the Legislature,” Baker said.

We cannot help but wonder why such big "power players" are willing to spend so much time and treasure on ensuring the passage of RM3 -- as they did with Measure AA -- if indeed "there has been no organized opposition." 

Maybe it is because they know other legislators besides Mark deSaulnier and Catharine Baker are questioning the efficacy and transparency of RM3.  This from another Matier & Ross article,

Even with the sweeteners, there was opposition from Contra Costa County, with state Assembly members Jim Frazier, D-Brentwood, Tim Grayson, D-Concord, and Catharine Baker, R-San Ramon, all voting “no.”  Frazier, who chairs the Assembly Transportation Committee, said that while there was a need for transportation improvements, “adding another tax on commuters is not the answer.” He likened an $8 toll to “highway robbery.”

Or maybe it is because they know there is opposition from small players like smaller businesses that need to truck goods across California's state-owned bridges, or lower-income folks whose realities of life prevent them from taking public transit to and from their workplaces, or people who see through a poorly managed RM3 plan.  These smaller unorganized players are the quiet threat to the big and powerful. 

Now There is Senate Bill 828

While we fret over Senator Scott Wiener’s Senate Bill 827 – Transit Zoning , his SB 828 – RHNA Reform is moving right along, and is now in the Senate’s Transportation and Housing Committee since March 21.  SB 827 has been languishing in the T & H Committee since March 1.

As in the case of the “housing package” passed by California legislators in 2017, which included SB 35 – Streamlined Approval Process, SB 828 is intended to significantly increase housing production, including low and very-low income housing.  Theoretically, nothing but a substantial mandated increase in housing production at all income levels in all neighborhoods will bring down housing costs, allow workers to live closer to their jobs, and reduce greenhouse gases by reducing travel distances.  

Critics of SB 828 and other “housing first” legislation recently passed or introduced, point not only to the costs associated with such legislation, but also to the flaws inherent in the legislations’ assumptions.  For example, The American Planning Association position letter regarding SB 828 states,

Beyond the more positive changes to RHNA [Regional Housing Needs Allocation] distribution, however, the bill contains a number of new RHNA requirements that simply can’t be met and would set up local governments to fail.

Perhaps we need to widen our view when judging the pros and cons of SB 828 and review the performance of other state and regional mandates.  How is Plan Bay Area performing in its stated goals of equitable access to housing, efficient cost-effective transportation systems, and traffic-jam free city streets.  Also, we might want to consider whether failure to achieve targets can be cured by increasing the forcefulness and penalties for failure.  How are state and city laws designed to lessen housing evictions working out?

Highlights of SB 828

*  Doubles the percentage of very low and low-income households that cities and counties must plan to accommodate from the current 100% to 200%.

*   Mandates cities, counties and regions take “all possible actions” to ensure housing production quotas are met, “including embracing and promoting all applicable reforms and incentives in Section 65582.1” [Code Section 65582.1 enforces mandates under Senate Bill 35, “by right” streamlined production approval process].

*  If median rent or home prices available for rent or sale exceed median income, communities must produce more housing to alleviate the imbalance.

*   Communities with high rates of income growth must “also have a high rate of new housing production for households of all income levels, in particular low-income and very low-income households, to ensure equity and to stabilize home prices and communities.”

*  Council of governments cannot use past underproduction of housing as measure for future production.  If there is a deficit in allocated production, the deficit must be rolled over to the next production cycle.

*  There will be no excuses for a housing production deficit.  “This housing deficit shall be considered a binding and nonnegotiable obligation, and this assignment shall be considered an administrative action by the department.”


*  Requirements for housing needs allocation have been in force at least since the 1960’s.  After more than half a century, these requirements have yet to achieve their stated objective of providing affordable housing for all.

*  What the requirements have achieved is a tsunami of increasingly forceful mandates transferring control of land use and planning away from cities and counties.  Under such mandates substantially the same state rules apply to all communities, removing residents’ ability to help plan for their own cities and counties

*   Assumptions underlying SB 828 ignore significant possibilities:

      Residents and city councils might reach a tipping point and simply refuse to accept housing production allocations, choosing instead to sue in court – for any possible reason – anyone who attempts to act under such allocations.  We have seen a comparable scenario with the use of the California Environmental Quality Act (CEQA).

      Planning for 200% of forecasted housing needs, including need for low and very-low income housing, is expensive.  Money to produce lower-income housing needs to come from somewhere.  Most likely money would come from a combination of market-rate buyers/renters and taxpayers, who might also reach a tipping point, refuse to buy/rent in California, or vote “no” on tax proposals

      Higher income residents living in high-value neighborhoods are unlikely to sit still while SB 828 works to reduce the value of their property.  More likely such residents will sell and leave the state before the full force of the bill takes effect.

      There is very little in life that is “binding and non-negotiable,” and some say only death and taxes truly fall under that category.  Everything else can be ignored, stonewalled, or litigated forever.

Deeper Questions

California legislators subscribe to a particular set of beliefs:  the state needs to foster economic growth, growth necessitates workers, workers need to have housing they can afford, housing needs to be close to where workers work to spare workers from long commutes and reduce greenhouse gases.  The only solution being discussed is forcefully-mandated dense housing near mega job centers and along the state’s anemic transit corridors.  Are we lacking competing solutions, or even competing assumptions?

Some Things Better Not Be Messed With

Single family neighborhood
Haight Ashbury in San Francisco

Plan Bay Area: Etched in Stone But Growing

Suggestions from the Nine-County Coalition:

*  If you are not familiar with Plan Bay Area, read on to get a feel of how the Plan was conceived.

*  If you are already familiar with the Plan, you may skip the article and take a survey on the Metropolitan Transportation Commission’s new website section called Horizon.  The survey will be available until March 31, 2018.

The birth of Plan Bay Area

Thousands of hours of public meetings marked the gestation of Plan Bay Area.  During such meetings, Metropolitan Transportation Commission and Association of Bay Area Government officials sat patiently with vacant eyes as they listened to hundreds upon hundreds of members of the public express their views on the Plan.  The public persisted in offering views, as the Plan marched on toward completion.  

At 6:30 pm on the evening of July 18, 2013, MTC/ABAG commissioners, along with a room-full of Bay Area residents, sat in the Oakland Marriott Hotel Ballroom, ready for yet another public meeting, more discussion, more public comment, and finally a vote from commissioners on the adoption of the Plan.  And comments abounded.  This is from a news article published on July 19, 2013 by SF Gate,

Critics showed up at Bay Area Plan meetings in increasing numbers as the plan rolled forward, and they dominated the crowd of about 400 at Thursday's meeting at the Oakland Marriott. Groups of opponents from Marin and San Jose chartered buses to the session. Many of them waved signs reading: "No Plan Bay Area," "One size doesn't fit all" and "Marxist Transportation Commission doesn't speak for me."  More than 120 people spoke at the hearing, most of them to blast the plan. Several insulted the commission and board members or pleaded with them to reject the plan, which they called unconstitutional and socialist.

Plan Bay Area adoption

After nearly six hours of discussion and testimony, at 12:15 am on July 19, 2013, commissioners voted and adopted the plan, as expected.  It was obvious then, as obvious now, Plan Bay Area was etched in stone from conception.

Stones don’t grow, but Plan Bay Area does

Plan Bay Area was etched in a special kind of stone called central planning.  This kind of stone remains basically rigid and unchanged, as stones do (unless there is a significant seismic event), but it grows.  Plan Bay Area 2040 is more encompassing than the original PBA 2013.  As we noted in previous articles,

Plan Bay Area 2040 is a mass of details.  Every demographic variable needs to be collected and catalogued.  People need to be identified, enumerated, and placed in their appropriate demographic slot.  Data collection needs to be thorough and frequent to ensure equity, environmental justice, sufficient outreach, minute forecasting into the next 20 years.  Each of these “performance targets” needs to be methodically described, religiously followed, and reworked when not met.  “Performance-based planning is at the core of Plan Bay Area 2040.

Focus on “Equitable Access” to housing is now greater than in 2013.  There is more reliance on policy changes and compulsory legislation, rather than dependence on market incentives.  Emphasis on mapping the Bay Area into “subregions” – “Big 3 Cities,” “Bayside”, and “Inland, coastal and Delta” – is also new.”

Difference Between Growth and Results

We also noted the following on the article quoted above:  “Performance means achieving a stated objective.  Result means solving an obvious problem.”  Has Plan Bay Area delivered results by improving the Bay Area quality of life, reducing traffic congestion, reducing the drumbeat of “housing crisis!,” provided inter-city transportation that enticed commuters?  If the answer is “yes,” wonderful.  If “no,” then it might be time for a seismic change.

Change comes with concerted effort by those who want change.  Remember the hours MTC/ABAG officials sat, glassy eyed, through interminable public meetings all the way up to adoption of Plan Bay Area 2013.  Think of the massive outreach by MTC/ABAG.  Look at the beautiful MTC website.  That’s what it takes.

Those who want results rather than performance are already doing quite a bit – for example, Citizen Marin, Coalition for San Francisco Neighborhoods, Contra Costa County Taxpayers’ Association, San Mateo Residents Speak, Save Marinwood, Solano County Taxpayers’ Association.  Every opportunity to provide alternatives to Plan Bay Area needs to be taken.

The Horizons Survey:  An opportunity to suggest change

MTC recently announced a new planning tool, Horizon.  The current caption on the Horizon website is,

When we plan for the future, what sort of future are we planning for?

Unfortunately, what MTC means is what sort of future within the constraints of Plan Bay Area might expect.  The Horizon site offers the opportunity for residents to take a survey through March 31, 2018.  The survey mostly asks how survey takers visualize jobs, housing, transportation, and the environment in 2050.   We suggest you take the survey, but consider not feeling constrained by Plan Bay Area strategies.

Taking the Horizon survey might be a small effort, but if more and more of us who want results in improving our quality of life in the Bay area persist in small efforts, we might expose the flaws of Plan Bay Area sufficiently to bring about change.

Does Senate Bill 827 Even Make Sense?

By now most Bay Area residents know what California Senate Bill 827 is, and what its authors Scott Wiener and Nancy Skinner say they want to accomplish.  Most residents are also aware that there is opposition to the draconian nature of this bill.  

 The purported objective of SB 827 is to force all cities and counties in California to build lots of housing along all transit routes.  Theoretically, the increased supply would bring prices down; while proximity to bus and rail routes would encourage residents to ride transit, not drive their cars.  Do these objectives ring true in the context of today’s California housing “market.”  Does proximity to transit translate into increased transit ridership?  Does SB 827 even make any sense?

Would SB 827 bring housing prices down?

We all know that ample supply brings down prices.  That is a rule of a free market.  The California housing market is barely free, given the myriad of laws that require rent control, developer-financed subsidized housing, substantial tenant compensation in the event of eviction, payment of prevailing (union) wages in construction, and buyers/renters accustomed to astronomical prices. It would stand to reason that 1) landlords would have to charge high rents when they can to make up for what they forego under controls and compensations; and 2) developers would need to build a lot of high-priced housing in order to make up for high construction costs and mandated subsidies.  This scenario does not appear to be conducive to lower housing costs.

Would SB 827 get people to take public transit?

Proximity to transit could increase ridership, especially since those likely to move into the denser transit corridors that offer smaller units might be single and/or “child-free,” and those folks may not be as encumbered by day-care or school drop-offs as multi-kid families.

On the other side of the coin, SB 827 would fail in accomplishing its transit objectives if 1) most of the units built along transit routes are market rate and therefore affordable only to higher-income residents, and 2) higher-income residents don’t take the bus.  

What is the elasticity of SB 827?

The Kaden Tower

Beautiful views of the Bay in San Francisco, desirable exclusive neighborhoods in Marin, family-friendly single-family homes in Alameda, affordable house sharing in quiet residential neighborhoods, as well as an oversized cluster of labor-intensive companies in Silicon Valley are all magnets.  Thus, places like the San Francisco Bay Area are experiencing too many people chasing too few homes.  SB 827 in full bloom would most likely undermine the first four variables.  At what point do residents who want the views, the tranquility, and the small enclaves of affordable housing start leaving – or even arriving?

Pictured: The Longaberger headquarters in Newark, Ohio.  Such a building coming to your neighborhood transit corridor soon? 

Would SB 827 work with flexible transit schedules?

SB 827 ties mandated housing to transit corridors.  Not just fixed rail such as BART, but all transit, including neighborhood buses.  

Say, your neighborhood bus makes frequent trips to the mega store where so many of your neighbors work and shop.  Under SB 827, your neighborhood must allow any developer to build multi-story housing along that bus route.  Most of your new neighbors are the more affluent people who can afford to rent or purchase the new high-priced units, they certainly do not work at the store, and they prefer not to take the bus.  Then, the mega store closes, and the bus is re-routed to serve other transportation needs.  We know that the new buildings cannot move to the new bus routes.  Therefore, we need to ask whether SB 827 aims to just build anywhere by using whatever gimmick sounds good, or it expects to ossify transit routes for as long as the buildings along the route stand.

An even worse case scenario arises if a city council becomes concerned that their more affluent residents (who most likely do not take the bus and who most likely pay goodly amounts in property taxes) will not be pleased with tall dense buildings marring the character of the neighborhood. Their solution might be to simply remove the bus service, thereby leaving many less affluent people who take the bus to their work in the more affluent neighborhoods without transportation.

Quotes readers might find useful:

Not since the "Urban Renewal" projects of the 1960s (most appropriately characterized as "Negro removal" by James Baldwin) has something so radical and detrimental to the stability of urban communities of color in California been proposed. It will undoubtedly lead to the massive demolition of the limited affordable housing stock we still have in L.A. (rent-controlled apartments, like the two-story buildings that line King Blvd and Leimert Blvd, and almost all of Baldwin Village, which are increasingly being bought by Wall Street investors) to be replaced by 5-8 story market-rate housing, where the average rent will go for $3,500/month or more. The Crenshaw Subway Coalition  January 2018

Americans who are lower-income, black or Hispanic, immigrants or under 50 are especially likely to use public transportation on a regular basis, Pew Research Center data show.  Who Relies on Public Transit in the U.S.? April 2016

…if a bus route were shifted from one street to the next, or lines truncated or consolidated, it could significantly affect zoning. Furthermore, it could create pushback from jurisdictions or neighborhoods who oppose increased density to suspend already planned transit service enhancements or avoid planning for increased transit service altogether. San Francisco Planning Department March 2018

SB 827 is not a housing bill; it’s a real-estate bill. It is intended to monetize real estate. This bill is not about YIMBYs vs. NIMBYs; it’s about WIMBYS: Wall Street in My Backyard. The Planning Report, Triumph of the WIMBYs  March 2018

…in response to hostile questions, Senator Wiener said, “I do not advocate a state takeover of housing policy. I’m advocating looking at a balance, where the state sets basic standards that are enforceable, and local communities [have] control within those standards—just like public education.” Triumph of the WIMBYs

I suggest we all get to know the chief bus scheduler at Metro, because he or she will determine what gets built and where. Who’s the genius who thought that scheme up?  Triumph of the WIMBYs

SB 827 Flyer we hope you also find useful

SB 827 Flyer

Regional Measure 3: Consider BATA and MTC Track Records

Background of the Bay Area Toll Authority (BATA)

The Bay Area political landscape is laden with acronym bureaucracies vying for residents’ hard-earned cash.  One of these acronym bureaucracies is BATA, the Bay Area Toll Authority. BATA was intended as one of the “better” agencies, the kind that earns its keep by earning revenues.  

The California legislature created BATA in 1997 to administer auto tolls on the Bay Area’s state-owned bridges, under the auspices of the Metropolitan Transportation Commission.  With expanded authority, BATA assumed responsibility for funding and overseeing Regional Measure 1 (approved by voters in 1988), and Regional Measure 2 (approved in 2004).  In 2004, BATA started managing FastTrack on the network of Express Lanes and for parking at San Francisco Airport.  In 2005 BATA assumed joint oversight with Caltrans and the California Transportation Commission of the state Toll Bridge Seismic Retrofit Program.  Regional Measure 1 used funds collected from bridge users to fund bridge-related projects, including a new span for the Benicia-Martinez Bridge, a replacement for the west span of the Carquinez Bridge, and widening the San Mateo-Hayward Bridge.
Things started to change with Regional Measure 2, labeled as a “Traffic Relief Plan.” RM2 called for a wide range of projects, most of which funding transit, not bridges or bridge access.  The $1 toll increase, to $3 per crossing, passed with a simple majority of votes, even though the $1 was clearly not an increase in user fees, but a tax that benefited other then bridge users
As undisciplined children who feel free to escalate their bad behavior, politicians keep testing how much they can get away with.  If voters continue to vote “Yes,” the political bad behavior continues to grow.  

How Bad is Bad?

Political bad behavior can cost residents money.  Surely, legislators and bureaucrats are only human and like all of us subject to making mistakes.  However, mistakes are different from irresponsibility.  To remind voters of BATA’s and MTC’s (Metropolitan Transportation Commission, the umbrella agency over BATA and other sub-agencies) behavior, we offer the following two events:

Since the credit crisis began in 2008, failed swaps deals have cost more than $4 billion as hundreds of borrowers, from the Bay Area Toll Authority in California to Harvard University, quietly pay Wall Street firms to end interest-rate swap agreements.  "It was brilliant, and it all blew up on me," says Brian Mayhew, chief financial officer of the Bay Area Toll Authority. In July 2009 the state agency paid $105 million to Ambac Financial Group (ABK), the bond insurer that filed for bankruptcy on Nov. 9, to dissolve $1.1 billion of interest-rate agreements.  Bloomberg Business Week, November 11, 2010

They’re at it again at the Metropolitan Transportation Commission.  The planning agency that allocates transportation dollars to Bay Area counties just moved into a new $256 million office building in downtown San Francisco, which was funded largely with bridge toll money and ran 53 percent over budget.  The Mercury News Editorial, December 23, 2016.

As a result of these two events, Bay Area residents lost $105 million and did without $256 million that could have gone to improve the state-owned bridges or stave off toll increases.  

Regional Bank Capitalized with Bridge Toll Money?

An additional event needs to be noted, the status of which seems to have vanished from the MTC records.  At BATA’s special meeting of September 28, 2016, Brian Mayhew, mentioned above, and Steve Heminger, Executive Director of MTC, introduced the proposal of using BATA’s reserves to fund capitalization of a regional bank.  Presently, the reserves fund self insurance of the bridges.  The proposal would terminate the self insurance and shift liability to capital markets in the form of long term bonds (“century bonds”).  The new strategy would cover not loss of assets but loss of revenue, on the basis that the bridges are in such great shape that they will probably withstand an intense earthquake.  

During the meeting, Mr. Mayhew mentioned that BATA has a triple A rating, and therefore, there would be no problem finding investors for the proposed bonds.  There was no discussion whether the triple A rating was in part due to the adequate reserves.

Now We Have Regional Measure 3

Now we are faced with Regional Measure 3 on the June 5, 2018 ballot, which needs to be viewed in the context of BATA and MTC track records, legality (is this really a user fee, when revenue is intended to fund non-bridge projects such as MUNI transit?), and equity (is this a question of lower-income Alameda riders funding higher-income Silicon Valley non-riders?).  

Nine-County Coalition participants oppose this measure, and would like to see more focused strategies, such as employed in Regional Measure 1.

There Are Solutions Other Than SB 827

Editor's Note:  We the People still have many ways to ensure that our voices are heard.  One way is submitting letters or opinion pieces to news outlets in response to articles or events. There is no guarantee a submission will be published, but the effort should be made.  This letter to the editor was submitted to the San Mateo Daily Journal by a Nine-County Coalition participant in response to an article on Senate Bill 827.

Legislators have found a perfect way to convince the voting public to accept just about anything:  turn any event into a crisis and nobody questions either the label of “crisis” or the solutions legislators offer to solve the crisis.  Cost of housing in the Bay Area is a case in point, as are Senator Scott Wiener’s solutions, the latest of which is Senate Bill 827. 

How did housing become so expensive all of a sudden?  Is it because residents of cities and counties wanted their communities to look as they wished them to look, or because state legislators decided to pass Senate Bill 375, Sustainable Communities and Climate Protection Act of 2008, thereby starting an inexorable march toward creating vast areas of no-build zones and tight corridors of population density.  This was done partly because we all want to breathe clean air and because of Federal mandates requiring regional “sustainability.”  But mostly it was done because state legislators saw an opportunity to amass power over cities and counties, get on the good side of developers and other big businesses, and establish new sources of political support. 

We residents and voters are dealing with a very harsh set of circumstances that require clear thinking of alternatives, not despair over yet another crisis.  Let’s form alliances with our neighbors and our neighborhood groups, study what is really happening, and let’s not be afraid to offer our own solutions!

Marcy Berry

You a Liar - The Death of Below Market Units


Contributing author:  Lisa Taner

They say they fight for affordable housing for all, at all costs, so build, build, build - details be damned. They are the hardcore YIMBYs (Yes in My Backyard), but here is a little something that calls them out on their touted motives.  I like to call it a "Below Market Free Pass" and developers are going to eat it up.

It's a bill called AB1505 and it effectively ends a city's requirement for developers to include low income housing in their plans. Beginning January 1, 2018, cities must offer developers the option instead of in-lieu fees or building units off-site of the proposed development.

The California Association of Realtors commented on this bill last summer when it was being proposed, and said, it "purports to address the low-income housing problem, but does nothing to encourage the construction of housing for low-income individuals.”

So, YIMBYs, WHERE WERE YOU LAST SUMMER??  You show up at city council meetings all over the County pushing against all the resident taxpayers of each of those cities to override their concerns and build, build, build...BUT WHERE WERE YOU?  You, who say you represent the folks who can't afford housing.  You, who point fingers at homeowners as if they were somehow objects of disgust because they worked hard to scrimp and finally own a home of their own - and now have the audacity to have an opinion about where they live...We should have heard you from the rooftops shrieking over AB1505...but no.

It begs the question: WHAT ARE YOUR REAL INTENTIONS?  AND WHOSE INTENTIONS ARE YOU ACTUALLY PROMOTING? Because obviously, low income folks, they ain't in it for you.

Legislative Information:  AB1505 was signed into law by Governor Brown 09/29/17.  "AB 1505 is narrowly focused on allowing local inclusionary policies to require the provision of affordable rental housing, if so desired locally, effectively restoring the law as it stood prior to 2009."

Article also posted on

Senate Bill 827: Right Problem But Wrong Solution

What is SB 827?

SB 827, Planning and Zoning: Transit-rich Housing Bonus, was introduced by California Senator Scott Wiener on January 2018.  Principal co-authors are Senators Nancy Skinner and Assembly Member Phil Ting.  The bill is currently in committee process.

Because the bill declares that its provisions address a matter of statewide concern, i.e. a housing crisis in all areas of the state, the bill applies to all cities and counties in the state, and imposes a state-mandated program in all cities and counties in the state.

What Does This Bill Do?

* Authorizes a height bonus for any housing project located within ½ mile radius of a major transit stop or a ¼ mile radius of a bus route.  Bonuses will allow heights of up to 85 feet (at about 8 feet per floor, 85 feet would mean 10 floors).

* Exempts projects with specified number of below-market units (i.e., those awarded a housing opportunity bonus) from city and county zoning regulations, such as floor area, parking, design standards, and height.

* Specifies that “notwithstanding any local ordinance, general plan element, specific plan, charter, or other local law, policy, resolution or regulation, a transit-rich housing project shall receive a transit-rich bonus…”  

Would This Bill Help Solve the Housing Crisis?

Critics of this bill have been pointing to some holes in the bill’s strategy:

* The bill refers to “fixed route bus service.”  This sentence is either a typo, a sincere delusion that bus routes do not change (or that housing can move to follow new bus routes), or a strategy to keep building as bus routes change.

* If neighborhoods are really opposed to mandates from above, all they have to do is decrease their public transit service.  No transit, no density.

* The major concern for many residents is displacement.  The bill offers height bonuses to any housing near transit.  Certainly a taller, market-rate building would be a lot more profitable than a rent-controlled shorter one.  Therefore, the bill produces a great incentive to gentrify neighborhoods.  Senator Wiener denies this; however, he has promised to amend the bill to include anti-displacement controls.  

* Major proponents of this bill, Silicon Valley companies that claim they have difficulty hiring employees because of the lack of an affordable housing stock, should have foreseen such a challenge.  They could have spread out throughout the Bay Area and/or built their own neighborhood-appropriate employee housing, as Google, Facebook and LinkedIn are doing right now.

"The lack of homebuilding in California imperils our ability to hire employees and grow our companies,” the leaders wrote. “We recognize that the housing shortage leads to displacement, crushing rent burdens, long commutes, and environmental harm, and we want to be part of the solution."

Hopefully, the “solution” is not to blanket neighborhoods with buildings that amount to little more than sore thumbs.

The Metropolitan Transportation Commission and Ice Tea

Regional Measure 3 (RM3), on the June 2018 ballot of all nine Bay Area counties, if passed would increase tolls on state-owned bridges by $3.  Enabling legislation is Senate Bill 595 signed into law by Governor Jerry Brown on October 10, 2017.  SB 595 says,

To improve the quality of life and sustain the economy of the San Francisco Bay area, it is the intent of the Legislature to require the Metropolitan Transportation Commission to place on the ballot a measure authorizing the voters to approve an expenditure plan to improve mobility and enhance travel options on the bridges and bridge corridors to be paid for by an increase in the toll rate on the seven state-owned bridges within its jurisdiction.

The Metropolitan Transportation Commission (MTC) has developed a spending plan and placed RM3 on the ballot.  With MTC running the show, Nine-County Coalition participants cannot help by worry!

MTC’s forever growing bureaucratic power and its spendthrift tendencies have been the subject of numerous articles on this website.  Also often mentioned on this website are MTC’s origins as a product of Plan Bay Area, Senate Bill 375- “Sustainable Communities and Climate Protection Act of 2008,” and Assembly Bill 32- “California Global Warming Solutions Act.”  

However, it might also be useful to discuss MTC’s role as the official federal Metropolitan Planning Organization (MPO) tasked with promoting “sustainable development” as envisioned by federal legislation.

Birth of the Metropolitan Planning Organizations (MPOs)

A fascinating article on the Federal Department of Transportation website tells the tale of the birth of federally-encouraged intra-state urban planning, which eventually morphed into the federal mandate for Metropolitan Planning Organizations -- apparently ignoring the Constitutional requirement that the Federal government’s jurisdiction is limited to inter-state matters.

 Federal Highway Administrator Rex Whitton vigorously revived and grew the Federal Highway system.

Federal Highway Administrator Rex Whitton vigorously revived and grew the Federal Highway system.

The story goes that President John F. Kennedy inherited a federal highway system in disrepair, so he set out to fix things.  The result was The Federal-Aid Highway Act of 1962, which stated that after July 1, 1965, the Secretary of Commerce

...shall not approve under section 105 of this title any program for projects in any urban area of more than fifty thousand population unless he finds that such projects are based on a continuing comprehensive transportation planning process carried on cooperatively by States and local communities…

To address the new planning requirements, State and urban officials formed ad hoc planning committees to reflect the "cooperative" element of the 3C process [comprehensive, continuous, coordinated] and hired consultants to gather and process data. Neither Section 9 nor the BPR's [Bureau of Public Roads] instructional memorandum on implementing it required formation of a permanent planning organization; however, the metropolitan planning organizations of today, required by the Federal-Aid Highway Act of 1973, would evolve from these early efforts to comply with the 3C requirement.

ISTEA – Pronounced “Ice Tea”

The Intermodal Surface Transportation Efficiency Act (ISTEA) was signed into federal law by President George H. W. Bush in December 1991.

It focused on improving transportation, not as an end in itself, but as the means to achieve important national goals including economic progress, cleaner air, energy conservation, and social equity. ISTEA promoted a transportation system in which different modes and facilities—highway, transit, pedestrian, bicycle, aviation, and marine—were integrated to allow a "seamless" movement of both goods and people. New funding programs provided greater flexibility in the use of funds, particularly regarding using previously restricted highway funds for transit development, improved "intermodal" connections, and emphasized upgrades to existing facilities over building new capacity—particularly roadway capacity.

Things Always Roll Downhill

ISTEA set the stage by tying federal funding to a prescribed type of urban planning based on “comprehensive, continuous, coordinated” plans that promote clean air and energy conservation, and give equal emphasis to all modes of transportation, including public transit, biking and walking.  

Thus we see the birth of California Senate Bill 375 and of Plan Bay Area.  Senate Bill 375, signed into law by Governor Arnold Schwarzenegger, approaches the requirements of ISTEA via statements of efforts to mitigate the effects of climate change.  SB 375 is the legislation that enabled the establishment of Plan Bay Area.

Are We Stuck With the MTC?

Did ISTEA’s mandate for MPOs seal our fate to be stuck with an expensive gigantic bureaucracy attempting to rule where we live, what our neighborhoods look like, and how we get where we want to go?  Yes! If we refuse to understand that the money MTC squanders telling residents what to do can only come from one source:  taxpayers.  The federal government said no money unless you have MPOs.  Taxpayers could say no tax increases will be condoned or approved by voters until the Bay Area MPO becomes more financially responsible and more accountable to residents. 

What Could Accountability Look Like?

Accountability is impossible under the constant tsunami of multi-purpose mega projects forever emanating from the state legislature and from MTC – while potholes get bigger and deeper.  Less wide-ranging projects would help in allowing voters to produce a report card on each project.

Accountability is also impossible when so many unelected bureaucrats are placed in charge of our hard-earned cash.  There is therefore room to argue that the MTC decision makers need to be elected by voters to perform their specific functions on the MTC.  The downside would be that such an idea legitimizes regionalism.  A region is not a jurisdiction such as a city, a county, or a state.  A better idea would be to change the structure of the MTC into a Council of Governments (most of the 18 California MPOs are either Councils of Governments or Associations of Governments, not commissions such as the MTC).  The Council could then negotiate Join Powers Agreements to accomplish inter-county projects.

But the ultimate guarantor of accountability is scrutiny by a vigilant and educated citizenry.

Regional Measure 3 On the June Ballot

Nine-County Coalition participants have concerns over Regional Measure 3 (RM3).  The measure will most likely appear on the June 2018 ballot of the nine Bay Area counties.  As in the case of 2016 Measure AA, RM3 depends for passage on the combined approval of voters in all nine Bay Area counties.  Unlike Measure AA, RM3 will only require a simple majority of “Yes” votes to pass, since RM3 is a toll not a tax.  Details of RM3 were devised by the Bay Area Metropolitan Transportation Commission, on authority from California Senate Bill 595 (authored by Senator Jim Beall, and signed by Governor Jerry Brown in October 2017).

RM3 is preceded by two other toll increases of the recent past, Regional Measure 1 in 1988 and Regional Measure 2 in 2004.

Here is a brief description of RM3, followed by some concern for the measure.

What does RM3 Do?

*  Raises the toll of Bay Area’s state-owned bridges by $1 in 2019, another $1 in 2022, and another $1 in 2025, to a maximum of $3.  The toll increase would raise $4.45 billion intended for transit improvements in the toll bridge corridors and their approach routes.

*  Establishes an independent oversight committee to ensure the toll revenues generated by the toll increase are expended consistent with a specified expenditure plan.

*  Provides discounts for vehicles that pay for tolls electronically or through other non-cash methods and charges differential rates based on the chosen method.  Provides a 50% discount on the amount of the toll increase on a second bridge crossing for those using a two-axle vehicle and pay in non-cash methods.

*  Creates an Independent Office of the BART Inspector General within BART, appointed by the Governor from nominees provided by BART for 4-year terms, funded by an allocation of $1,000,000 from bridge toll revenues for the first year, increasing in subsequent years.

What would RM3 Revenues Be Used For?

Allocation of RM3 funds is detailed in the Regional Measure 3 Expenditure Plan.

*  $60 million of revenues generated by the toll increase will be made available annually for funding operations of the Transbay Terminal ($5 million), ferries ($35 million), and regional express bus ($20 million).  This amount is "another component of the Regional Measure 3 expenditure plan."

*  $1,965 million to fund regional capital projects, such as BART cars, express lanes, San Francisco Bay Trail/Safe Routes to Transit (grant program to fund bicycle and pedestrian access improvements on and in the vicinity of the state-owned toll bridges connecting to rail transit stations and ferry terminals), ferry enhancement, BART to San Jose, SMART Rail Transit, Clipper system.

*  $2,485 million to fund corridor-specific capital projects, such as Caltrain Downtown Extension, MUNI fleet expansion, AC Transit improvements, I80 transit improvements, planning and preliminary engineering of a second rail tube,Tri-Valley transit access improvements, San Jose Diridon Station, Dumbarton Corridor improvements, Highway 101/Route 92 improvements, I680 reconstruction, Solano County I80/I680/Route 12 improvements, Route 34 improvements, San Rafael Transit Center.

It is worth noting that “traffic mitigation” in the context of RM3 means funding for public transit and bicycle safety, as well as funding for highway construction.  Capital expenditures directly related to highway improvement total $1,720 million, and expenditures related to public transit improvements and bicycle safety total $2,730 million.  Expectations are that transit and biking improvements will get people out of cars, thus mitigating traffic congestion for those who drive.

What are Poll Results So Far?

The Metropolitan Transportation Commission says a poll conducted December 2017 shows strong support for toll increases.  Respondents from all nine Bay Area Counties showed support for both amount of increase and for projects to be funded.  Responded included both frequent bridge users as well as infrequent users.

So What are the Concerns?

Equity:  RM3 accelerates the pace of transforming bridge tolls from user fee to tax disguised as user fee; those who commute by BART, ferry, and MUNI Metro benefit from the toll increase, but do not pay tolls.  Counties like Santa Clara with a large population of voters but fewer bridge toll payers have the same say at the ballot box as everyone else.  Higher-income residents are concentrated in Santa Clara, San Mateo and San Francisco, counties with the lowest rates of bridge toll payers; while relatively less affluent counties like Alameda or Contra Costa have higher number of residents who pay tolls – a case of the less affluent funding the more affluent.  Increases in bridge tolls are less painful to higher-income residents than to lower-income ones.  Public transit is not a realistic option to the many parents needing to drop off small children in daycare before heading off to work; so they will probably drive, pay bridge tolls, and subsidize the child-free taking the ferry to work.

 Relatively fewer residents of Santa Clara pay bridge tolls, but will benefit from RM3.

Relatively fewer residents of Santa Clara pay bridge tolls, but will benefit from RM3.

 Chart shows residents' primary mode of transportation during commute hours.  Good to compare this chart with the chart indicating percentage of residents that pay tolls.

Chart shows residents' primary mode of transportation during commute hours.  Good to compare this chart with the chart indicating percentage of residents that pay tolls.

*  Track Record:  The 2016 “first of its kind” Regional Measure AA promised wonderful projects that would restore the Bay.  One year later, KQED News reported that,

Measure AA will raise $500 million over 20 years, providing a third of the total $1.5 billion needed to reach the restoration goal. But even with the help of an assortment of other grants, the project is currently less than 30 percent funded…additional funding is needed if adequate restoration is to occur before the 2030 deadline.

*  Accountability:  Multi-purpose proposals that promise improvements in numerous fronts (highways, buses, ferries, fixed rail, terminals, payment systems) make it difficult for voters to hold legislators and agencies accountable for inefficiency and waste.  The challenge is compounded in the age of  “regionalism,” when voters are dealing with a massive regional agency such as the Metropolitan Transportation Commission.  More accountability can be obtained with local control and inter-agency collaboration, such as existed prior to the regionalization of Bay Area government. 

*  Voter Control:  The trend towards creation of offices of appointed inspectors general to do the work residents would have expected from elected boards continues with RM3.  BART will receive its appointed inspector general with this measure, at a cost of $1 million the first year to increase in subsequent years.  

*  Use of Funds:  The high taxes Californians pay do not buy them good services.  WalletHub contrasted state and local taxation with quality of services in each of the 50 states in areas of education, health, safety, economy, infrastructure and pollution.  In the resulting Taxpayer Return on Investment chart, California ranked 47 out of 50 (1= Best).  Whatever black hole other taxes go, perhaps the bridge toll increase will also go.


Bay Area residents currently need improvements in transportation infrastructure and traffic flow.  RM3 promises to mitigate both needs.  However, given the concerns listed above, residents might ask by what means can voters demand performance improvements in their state and local government – by continuing to vote “Yes” or by taking this opportunity to send one highly touted measure back to the drawing board.


RM3 Handout

If you would like to share the information on this post with those who might be interested, you can download a two-page handout.  One page describes RM3, and the other lists concerns.   Download