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Problems with the City's Q&A on Measure JJ,The Baylands General Plan Amendment (GPA)

This Article is a response to the Brisbane City Q&A Orange Sheet

(covers questions 1-11 published in October, 2018 Brisbane Star and questions 12-17 presented at City Council meeting of October 4, 2018)

A. QUESTIONABLE LEGALITY: The basic problem with the City distributing its views on the Baylands General Plan Amendment through this Q&A format is whether it's legal to expend taxpayer funds on information that seems to favor Measure JJ. City funds have been used to pay the staff who are preparing this material, and taxpayer funds are being used to print and distribute this material in City publications (Brisbane Star). The law allows the City to use funds in the "educational presentation of objective facts" but not to "advocate."

Of course, it is a matter of judgment as to what are "facts" and what are "advocacy arguments." However, in my view, some of the answers in the City's Q&A cross the line into the advocacy arena. For instance, the answer to question 3 contains the fear argument that if we don't approve JJ, there is the strong likelihood that the Legislature will impose the developer's plan on Brisbane. This is speculation, not a fact. At the July 19, 2018 Council meeting, the Council's own Sacramento consultant opined that he didn't think a bill specifically targeting Brisbane would be introduced if JJ were defeated. However, the Legislature may very well introduce new statewide housing mandates that could apply to Brisbane as well as all other cities, regardless of the outcome of Brisbane's vote.

B. LEGAL PROTECTION OF THE CURRENT GENERAL PLAN: The best legal protection that Brisbane's Baylands planning process currently has against State interference in local housing decisions, such as those in SB 35, is its General Plan policy that prohibits housing in the Baylands. While SB 35 gives developers the legal authority to override any action on the part of a City considered obstructionist to housing proposals, it does not impose that authority in areas of the City in which the General Plan has prohibited housing. Measure JJ would remove that protection. Then there would be no guarantee that a developer would honor the limits on numbers of dwelling units included in the Council's General Plan Amendment. As the City's Sacramento-based attorney said at the October 4th Council meeting, the developer was "involved in the process that created the General Plan Amendment, but did not offer his approval."

A No vote on JJ, in my opinion, is more likely to retain local control than going along with the Council's GPA.

C. GPA INCREASES HOUSING SHORTAGE: The answer to question 3 implies that the GPA will help reduce the housing shortage. In fact, it is doing the opposite. The 7 million square feet of allowed commercial development will create 17,000 new jobs (EIR Resolution 2018-61, p. 128) whereas the maximum number of GPA dwelling units is 2,200. That's 7.73 new jobs for each new dwelling unit. Therefore, instead of mitigating the housing shortage, the development allowed under the GPA will make it much worse. The primary problem is the huge amount of commercial development, and the number of jobs that it is projected to create. Even the amount of housing allowed in the GPA would double Brisbane's population.

D. COUNCIL HAS MORE OPTIONS: The answer to question 3 also incorrectly implies that if Measure JJ fails the Council must then act on the developer's proposal by determining whether to "approve, deny or modify" UPC's Specific Plan. First of all, the Council cannot approve the developer's Specific Plan proposal that contains 4,434 units of housing since the voters will have just instructed them to stick with the current General Plan that doesn't allow housing in the Baylands. Furthermore, another option if JJ fails is for the Council to rework its General Plan Amendment and submit an improved version to the voters at a subsequent election. The answer to new question 12 which asks what happens if UPC refuses to change its Specific Plan even if the voters pass JJ seems to agree with the argument that the Council has additional options available to them whether JJ passes or fails. The City's Attorney agreed, for instance, that the Council has the option to construct its own Specific Plan.

E. HOW PROTECTIVE IS A DEVELOPMENT AGREEMENT? The answer to question 4 makes the dubious assertion that the provisions of Measure JJ, such as the maximum number of housing units, could be protected from "subsequent state laws" by a development agreement. First of all, it is important to note that there is no development agreement on the table. Development agreements are contractual lists of conditions that bind both the developer and the City. Because of the size and complexity of the Baylands development, there are likely to be hundreds of provisions, and it will take a long time to negotiate, probably years. In the meantime, the City is vulnerable to State mandates with no legal protections. Furthermore, development agreements cannot protect the City from existing laws and it is even questionable whether it can protect the City from new laws. For instance, the Development Agreement Manual issued by the Institute for Local Self-Government seems to state the opposite: "If a state or federal regulation is amended in a way that would preclude further performance under the agreement, the affected provisions of the development agreement will be modified or suspended" (p.57). Even the City's attorneys hedged their answers about the protective power of development agreements. At the October 4th meeting, they made statements like a development agreement is the City's "best protection," or its existence would give the State "limited ability" to interfere in local land use decisions. Of course, if the City believes that getting a development agreement in place is the "best protection," it gives the developer incredible leverage in the negotiations.

F. WHEN IT COMES TO HOUSING, THE LEGISLATURE DOES NOT BELIEVE IN LOCAL DEMOCRACY. Question 7 discusses SB 35, but the most important point is missing. The key point to know about SB 35 and comparable housing mandate legislation is not whether its current provisions apply to Brisbane. The most important point to learn from SB 35 is the Legislature's belief that the housing crisis gives it the authority to completely override local control. "The Legislature finds and declares that ensuring access to affordable housing is a matter of statewide concern, and not a municipal affair" (p. 13). Therefore, neither the GPA nor any development agreement based upon it may be able to protect Brisbane from subsequent State legislation. An example would be SB 827, legislation that will be reintroduced by Senator Wiener in the next legislative session. It stipulates the height, density and parking requirements for "transit-rich housing projects," overriding local laws and regulations. The Baylands with its Bayshore Caltrain station is the type of situation Senator Wiener has in mind.

Three of the new questions (14, 15 & 16) refer to the Regional Housing Needs Assessment and the new State law, SB 828, which mandates the methodology that the Association of Bay Area Governments (ABAG) must follow in making its city housing allocations. The answers all stress the uncertainty of implementation in the future. Of course, future behavior is not 100% predictable. However, it is noteworthy that the law instructs ABAG that its housing allocation decisions should not be limited by local ordinances and land use restrictions, that it should take into account "each member jurisdiction's existing and projected jobs and housing relationship," and that none of the State's instructions can be overridden by "voter approved measures."

G. THE CITY'S PLANNING NEGLECT IN THE CASE OF HIGH SPEED RAIL: The answer to question 8 regarding High Speed Rail (HSR) demonstrates the City's inconsistency on long term planning. Some of the environmental mitigations for the Baylands have 100-year time frames; build-out may take 50 years or more, yet considering the proposal to place a HSR maintenance yard in Brisbane is called "premature" because the HSR EIR won't be available for 2 more years. The yard's location will not just be negotiated between the High Speed Rail Authority (HSRA) and the landowner. The City also has an interest in location and infrastructure connections. The City's concerns and preferences should be a part of the High Speed Rail Authority's (HSRA) planning processes from the beginning. Just like the State and County toxic remediation agencies have the final say, HSRA with its power of eminent domain has the final say. Nevertheless, the City can at least try to influence its decisions. But it needs a plan.

H. TRAFFIC GRIDLOCK: According to all the relevant Environmental Impact Reports, the worst unmitigatable impact of the Baylands and all surrounding development is the traffic gridlock that is predicted. Both local streets and the Bayshore Freeway will be affected. The first Q&A set did not even mention this huge impact on the quality of life in Brisbane. However, new question 17 does address the issue. The answer mentions some minor mitigations, but the major infrastructure improvements noted are very expensive: the Geneva Avenue extension, Rapid Bus Transit, and a new Candlestick freeway interchange. Even if these projects are somehow financed and completed, the anticipated cumulative regional development will still create traffic gridlock.

If you want to get a sense of what the future is likely to be, just visit the Oyster Point development in South San Francisco at commute time, and they are still building!

I. OVERLOOKED IMPACTS: Are there other major impacts that are not covered in the Q&A? Yes, the dangers from liquefaction are not mentioned. Also, all the unresolved problems relating to water supply are not explicitly addressed. The low probability that either the Bayshore Elementary or Jefferson High School Districts will change their positions that are not friendly to Brisbane's interests is also not discussed. Finally, even though the State has committed to 100% renewable energy production by 2045, the Council in its GPA supporting documents rejected the Baylands Renewable Energy Alternative with its 100-acre solar farm as insufficiently profitable for the developer. The Council ignored the citizen's survey and the recommendations of the Planning Commission.

9. There is more information on these issues on, including a longer essay of mine entitled, "Critical Reflections on the Brisbane City Council's 2018 General Plan Amendment for the Baylands."

Prepared by Former Mayor Ray Miller - October 10, 2018



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