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Bill to Delay Implementation of SB 743 Gains Traction

A developers' group is promoting a new piece of legislation that would postpone implementation of SB 743 – the bill that would change traffic analysis to vehicle miles traveled in environmental review – for a year. The bill has apparently revealed a split among developers who say they focus on infill projects.

Sponsored by Assemblymember Cristina Garcia (D-Norwalk), who was elected in November, Assembly Bill 779 would postpone implementation of SB 743 until 2017. A lobbying group called the Infill Builders Federation is sponsoring a bill that, depending on its final form, would postpone the implementation of SB 743. Supporters insist that they embrace VMT but say that the two years are needed to help developers prepare for the switch and to work out what they see as kinks in the law. (The City of Pasadena has already implemented most of the provisions of SB 743.)

The bill has progressed relatively smoothly through the legislative process. It passed easily, 15-0, through the Committee on Transportation and Natural Resources and has been heard by the Appropriations Committee. Whether Governor Jerry Brown, an avowed proponent of smart growth, will veto the bill remains to be seen. 

The trouble, say the bill's opponents, is that California's cities need SB 743 yesterday.

"Sure, there's a transition, but that's not a reason not to go ahead," said Curt Johansen board president of the Council of Infill Builders (CIB), a nonprofit advocacy group that was once affiliated with IBF

Garcia's office declined to speak to CP&DR on the record. IBF's lobbyist Erin Niemela declined as well. IFB board members did not respond to repeated requests for interviews. CIB, as well as other critics, claim that the IBF does not truly represent the interests of infill developers but rather is a front for greenfield developers (some of whom also do infill). 

"The idea that's coming out of a nominally infill builders organization is really disappointing," said Ethan Elkind, Associate Director of the Climate Change and Business Program at UCLA Law School and advisor to the Council of Infill Builders. "Their arguments are wrong, but I also question why a group of infill builders would be pushing a measure that would hurt infill."

The apparent concerns of AB 779's supporters are threefold: 

(1) VMT analysis may unfamiliar, and therefore potentially burdensome, to many developers; 

(2) because cities may still impose their own metrics, regardless of CEQA's requirements, some developments may be subject to two analyses; 

(3)  given the litigious history of CEQA, VMT analysis — and, potentially, unforeseen holes in SB 743 — could provide more grounds on which opponents of a project could sue. 

Supporters of VMT, and, specially, of the way SB 743 was crafted, reject all of these claims. 

While CEQA provisions have been used in unfathomably creative ways since the law's 1970 passage, concerns about litigation are, supporters say, covered largely by the fact that projects in what the law defines as "transit priority areas" — a half-mile radius around an existing or planned "major transit stop" — and that are consistent with specific plans that have already passed CEQA scrutiny are exempt from VMT analysis entirely. 

"A traffic study is a huge component of the time and the cost involved with entitlement work," said Johansen. "To be able to get an exception by a well located project…(is like) getting a free pass." 

Supporters of AB 779 question the effectiveness of this provision in practice, given the historical aggressiveness of many project opponents and CEQA attorneys. One proposed solution that supporters are reportedly proposing would give the Office of Planning and Research the authority to determine significance thresholds – the levels of impacts at which a project would be considered in violation of CEQA. This sort of authority would be unprecedented for OPR. 

OPR is proceeding with its guidelines process. OPR staff declined to be interviewed for this article, but Chris Calfee, senior counsel at OPR, issued this statement: "The Office of Planning and Research has conducted extensive public outreach over the past year and a half on its preliminary discussion draft and is currently developing a revised draft that responds to input received from the bill's sponsor as well as other stakeholders.  We look forward to completing the process that Senate Bill 743 set in motion."

This provision does not, of course, shield developers outside transit areas, but that is by design. Under VMT analysis, they still may be subject to suits claiming insufficient analysis or mitigation just as they are today under LOS. Supporters of SB 743 say that this is intentional: the law discourages greenfield, less dense, and/or non-transit-adjacent development by measuring vehicle traffic and, in many cases, preventing developers from mitigating impacts simply by expanding roads (to relieve congestion at affected intersections). 

"LOS basically allows you to buy your way out of traffic impacts," said Johansen. 

Whether VMT analysis — by itself or in conjunction with conventional LOS analysis — is more burdensome for non-exempt projects remains to be seen. Supporters of VMT say that the burden will be negligible, especially since much of the data-gathering will be identical to previous methods and that there are widely accepted methods for analyzing data to estimate VMT. 

"All the factors you need to calculate LOS accurately are the same as the factors you would need to calculate VMT," said Jeffrey Tumlin, principal and director of strategy at transportation planning firm Nelson-Nygaard. 

"It's incredibly straightforward," said Elkind. "Compared to a stack of papers for a traffic study--you're talking 3-4 phonebooks--it's as off-the-shelf as it can get. The standard of review to challenge a VMT analysis is much higher."

Tumlin noted that cities may have legitimate concerns about switching to VMT. Cities have often used LOS analysis as an exactions tool, to get developers to cover mitigation measures that cities otherwise might have to fund themselves. Likewise, SB 743 may impact highway projects developed by Caltrans. Neither cities nor Caltrans appear to be involved with AB 779. There are no representatives from any public entities on the IBF board. 

While AB 779's supporters claim to support infill development and the wisdom of VMT, their opponents suggest that IFB and others are concocting objections to SB 743 in order to protect the interests of greenfield developers. 

"I think what's happening is both the sprawl industry as well as under-resourced municipalities are finally understanding that this is real and that it's going to change the way they do business," said Tumlin. 

The debate over AB 779 is but the most tangible manifestation of a rift that opened several years ago between rival groups. Representatives of the Council of Infill Builders, which used to be aligned with the IBF, say that they have not been invited to discuss the bill with Garcia's staff or with the IBF. CIB is a nonprofit advocacy group whereas IBF is a registered lobbying group. 

"The makeup of the two organization probably speaks volumes about the principles that each one ascribes to," said Johanasen. 

SB 743's supporters say that its passage would undermine the aggressive climate change goals that Brown has consistently set and, of late, codified in an executive order calling for a 40 percent reduction in greenhouse gas emissions by 2030. 

"This seems to me like it would be a step backwards, and I would be surprised if he supports it," said Johansen. 

Resources

SB 743 Legislative Information  http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB743

SB 743 Transit Priority Areas http://www.opr.ca.gov/s_transitorienteddevelopmentsb743.php

AB 779 Legislative Information http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB779

 

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