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CVP Michael Wolf

Mr. Wiener’s Whimsical World: The “Madman” Theory of Zoning

As a disclaimer, I’m not categorically against any type of development, be it prefabricated, modular homeless housing or 100 story luxury apartments. If a city wants to build the tallest building in the world, that’s fine if it’s their decision to do that. What I am against is top-down planning by government and big money, forcing inappropriate development on defenseless communities, by commandeering local planning and zoning control and dictating to locally elected officials and taxpayers.

I’m also not an “urbanist” or any other “ist” for that matter. I love great urban places as much as I love quiet small towns. Each has its unique and compelling characteristics, and I think we should work to preserve both. If I need a label, I guess I’m a quasi-Wrightian when it comes to planning and growth. As anyone who has read my first book or my work over the years knows, I believe that growth and planning requires complex solutions, incorporating a mix of low-density and high-density, enabled by technology so both have a much lighter footprint on the planet than either do at the moment.

What I know for sure is that a one-size-fits-all approach to zoning will not get us there.

When dealing with development issues in different places, from urban cores to rural towns, nothing is comparable: not available locations, land types, the social services and public services available or the needs of the populace or the programs that exist to address them, or the types of businesses and industries that are viable, or the municipal government’s financial wherewithal and the capacity of their agencies.

In the face of increasingly complex planning and growth challenges and increasingly unpredictable unintended consequences, Senator Wiener has chosen to ignore all this and charge forward with a blunt instrument belief that removing local zoning control will solve everything. His proposals have no proven track record of success: success being defined as financially, socially and environmentally viable in a market based, democratic society.

I’m not claiming that our system is not flawed: in many ways it’s a total mess. Still, like it or not, for better and for worse California is not Europe or Asia or even New York City, so we have to work with what we have. And, on balance, I would argue that what we have in place can work well, even though new ideas and modifications are needed.

But, Senator Wiener doesn’t live in that world, which is why the visions embodied in his Senate Bill 827 are fatally flawed.

Fatal Flaw #1: Local Planning is not just about control

A city’s General Plan and its zoning ordinances are not about “control” for its own sake, they are fundamentally about the financial solvency of the city. Over centuries, municipalities have sought to address and express their social, environmental and financial needs and goals through planning: adding provisions to encourage different types of commerce to provide jobs, services and tax base, or to improve infrastructure or bring in new residents (aka consumers), endlessly seeking a balance, though that is always unattainable.

The detailed decisions that go into creating a city’s General Plan attempt to address the fact that financially viable private development (housing, commercial, industrial, etc.), requires a supportive context of public investment and reliable planning execution.

Every municipality I’ve ever worked with has indicated that housing is at best a financial break even for cities: the costs of infrastructure and public services outweigh the revenues generated (and this is in California: the highest taxed populace in the country). Commercial properties, on the other hand, are generally a more reliable revenue source.

For example, a single 100 room boutique hotel in Marin can generate over $1 million a year in tax revenues. Conversely, allowing too much housing without sufficient commerce, retail, industry, local jobs and services results in reduced city revenues and public services, which lowers property values and so on, in a downward spiral that bankrupted more than one city in the last boom and bust housing cycle.

In the San Francisco Bay Area, allowing the addition of uncontrolled amounts of housing throughout our nine counties, without sufficient, local jobs creation and commercial development, also leads to longer commutes and more traffic.

Local planning can address these kinds of imbalances better than central planning agencies in Sacramento.

Planning and zoning work best, when applied surgically and with specific intentions. Conditional use zoning is an example of that. It offers the possibility of a certain profitable use for a developer, if the community receives some tangible benefit in return.

In addition, real estate developers and investors need a sense of certainty and depend on the fact that the goals and doctrines found in the General Plans, Specific Plans, Community Plans, Master Plans, Special Assessment Districts of public agencies will come to pass. However, that consistency and follow-through on long term, public agency planning is critical not just for private investors, but also for every family that buys a home and every entrepreneur who opens a small business and to the community at large that makes decisions based on those plans.

Municipal planning documents take years and thousands of man/woman hours to come into fruition and they embody layers of detailed decisions about every aspect of what makes a city a city, and those decisions are eventually encoded in local zoning ordinances. To cavalierly disregard the results of this process is madness.

Mr. Wiener fails to or perhaps doesn’t care to understand any of this and wishes he could do away with all of it. He seems confident that he’s the smartest guy in the room.

Fatal Flaw #2: If you build it near transit, will they come?

When one considers public transportation, it would be naïve to believe that just having a ferry terminal or a train station somewhere will result in financially viable, privately funded development. Want to buy a mall? I know where you can get one cheap, near good public transportation. As noted, planning, zoning and outcomes are more complex.

Similarly, to enforce strict definitions of what is or is not “transit rich” as the basis of legislation for the entire state, regardless of whether it’s an urban core or a rural neighborhood and devoid of context, available public-private investment, location, topography, construction type, design, unit sizes, amenities available or infrastructure required (all of which are the purpose of local planning) is completely nonsensical.

Mr. Wiener’s legislation treats a suburban bus stop the same as an urban ferry terminal. At the same time, his legislation doesn’t even bother to address our more urgent need, which is for better public transportation. It only assumes transportation’s value, mathematically. This, however, is not how real planning works.

Good planning involves taking everything into consideration – job growth, tax base, schools capacity, commercial demand, housing needs and types, infrastructure and public transportation options – and using that to create viable, long term, General Plans in coordination with public investment.

That Wiener fails to acknowledge the relationship between sustainable growth, development and local planning would be bad enough. Worse still, he proposes to predicate zoning decisions on transit frequency.

Fatal Flaw #3: Zoning based on bus route frequency

As I’ve argued, the existence of transit by itself is not a rational basis to drive zoning and development decisions. Transit alone will accomplish little, out of context, and development that is only driven by that transit has less chance of thriving. But, tying zoning and development directly to bus frequency is even more irrational.

Demand for bus service is dependent upon everything else that is outside of the control of that transit system. That is why, without predictable long term planning and the investment of public and private funds that go with it, Wiener’s version of “transit oriented development” near bus stops will not only fail, but will create zoning chaos.

First off, there is a huge difference between fixed transit (trains, highways, ferry terminals, airports, etc.) versus surface street transit (buses, shuttles, taxis, etc.). One is essentially permanent and a long term investment, while the other requires little investment and can change at any moment.

When it comes to zoning, fixed transit is far more certain than surface street transit, which is why major real estate development analysis tends to discount surface street transit (except for automobile and truck access), when evaluating opportunities. Still, it’s important to acknowledge that even trains and ferries change scheduling, depending on demand and ridership, so tying their frequency to zoning is still problematic.

There is no doubt that buses and shuttles are an important form of public transportation. However, bus routes are constantly changing based on ridership, so what happens when bus frequency suddenly rises above or falls below SB 827’s frequency criteria?

Will cities then be required to immediately up-zone or down-zone large swaths of land as bus intervals rise and fall? And, how will a city or a developer deal with zoning that is in constant flux and essentially unpredictable?

What if a street is “transit rich” one year but not the next, and in the interim a developer has broken ground on a housing project? Does that neighborhood then end up with high density housing but no public transit, because the municipal agency decided to reduce the bus frequency or worse, move the bus route somewhere else, entirely?

For all intents and purposes, Wiener’s legislation hands zoning control over to the Director of the MTA in San Francisco, or the Golden Gate Bridge, Highway & Transportation District bus service.

Now add this to the mix. Surface street transportation is presently in the midst of its most disruptive time since the invention of the automobile. And, on demand shuttles, flexible route, app-guided, more efficient, cheaper, just-in-time services, and even autonomous technology-enabled options are about to transform the sector even more.

In New York City, for example, the emergence of Uber and Lyft have made the once prized taxi medallion, which ten years ago was worth $100,000, practically worthless. In the coming decades, it’s possible that there may no longer be any fixed municipal bus routes at all. Unless public transportation is transformed, it may not be able to compete.

What will the residents of Wiener’s high density housing projects that were built based on bus frequency, do then, when public transit systems cut back service to remain financially solvent?

Will any of this happen with certainty? No one knows, but the trends we’re seeing would suggest caution and strengthening coordination with local decision making, not weakening it.

Fatal Flaw #4: High density development without parking

There certainly are arguments for development at varying densities at major fixed transit locations. The question though, in our fully developed communities, is where do we find the land for that development? Unfortunately, according to Wiener, it will be at the expense of parking.

Believing something is so, because you say it so many times that you convince others that it’s so, only works for con men and politicians, though I guess that’s redundant. The rest of us have to live with the consequences.

Driving and having parking when we get where we’re going, is essential for shopping, doctor’s appointments, school drop-offs, errands, and so much more. If we can't park at our destination, it's likely we'll go somewhere else. So, it is equally essential to all the merchants and service providers we are visiting, because without somewhere to park our cars we couldn’t get to them to buy their goods and services.

We no longer live in a world where getting to everything we and our families need is walkable. In fact, since the succession of disruptions caused by big box retail and online sales and resultant concentration of commercial, medical and retail development, almost nothing is walkable anymore. It’s only in an urban core with a lot of public transportation (e.g., New York City) that one can get to most things without a car. And, even in many of those place, in spite of increases in investment in public transportation (Los Angeles, Portland), ridership of public transportation is dropping as people are choosing to use other transportation services that save time and allow them to make multiple stops and carry heavier items, and according to some, because transit investment itself displaces those who use it most.

All this considered, parking remains the life blood of local businesses and particularly parking no more than a couple blocks from a store. This is even more the case for small, mom and pop businesses and all local service providers, who do not have big advertising budgets.

When the Miller Avenue Streetscape in Mill Valley was redeveloped, many small, local-serving businesses barely hung on, because people just wouldn’t put up with anything that makes them walk too far or takes too much time, even though new temporary parking was arranged several blocks away. They simply went elsewhere.

This logical tendency of people to optimize their time and convenience means that commercial development (offices, restaurants, retail shops and service businesses) cannot survive without parking.

Wiener’s legislation rejects this reality, entirely.

But, ask yourself this. How can SB 827 supporters suggest that agencies such as BART, eliminate their parking lots in order to build housing near transit? What happens to all the people who used to drive to the BART station to go to San Francisco or elsewhere? They’ll be left with no alternative but to drive to San Francisco and try to park there.

And, let’s please start being realistic: people over forty, who are in their prime working and earning years, will not generally ride their bikes 15 miles back and forth to work every day, particularly if their day consists of multiple meetings out of the office. It's just nonsense.

Similarly, if the development that replaces a parking lot is mixed-use, where will customers patronizing the retail stores park? Only small convenience outlets can survive if frequented only by BART passengers.

Fatal Flaw #5: Is pollution from cars the impact we have to plan for in the future?

Government and politicians move so glacially that they always tend to be fighting the last war. The current environmental issues surrounding the transit oriented development debate are like that.

The TOD argument of last resort is that getting people out of cars is our top priority, because of the environmental impacts. Historically, that was true (this policy came out of the 1970's when air pollution choked every major U.S. city), but alternative fuel, automotive technology is being adopted rapidly, as is the legislation to mandate it. In fact, a number of countries around the world have already set dates by when the internal combustion engine will be outlawed, and California may soon follow suit.

As I've argued over the past ten years "personal transportation vehicles" -- be they cars, trucks, motorcycles or new hybrid forms -- are here to stay. They are analogous with freedom and choice can adapt to every conceivable need (business meetings to vacations). And, with advancements in technology and new legislation, housing, automobiles and greenhouse gas emissions are rapidly decoupling.

Looking out into the future, which is what we're supposed to be planning for, the entire "TOD lowers GHG auto emissions argument falls apart. But, there are also financial consequences to consider.

Large-scale development requires enormous amounts of capital, both public and private. We should always ask if that investment is the best way to achieve our goals. Even if one were to agree that we should get all older, polluting vehicles off the road right now, to reduce emissions (something I advocate), is high density development the quickest and least expensive way to do that?

In 2010, some of us did a quick financial analysis of a 30 unit, high density housing project that was proposed in Mill Valley. That analysis showed that buying zero emissions, hybrid electric cars for all the future residents of that project would cost the taxpayers only about 25% of the value of the public development concessions needed to approve the apartments.

I'm not suggesting that this means we shouldn't build any housing, but it shows that there are more immediate and direct ways to address greenhouse gas emissions. How about just offering a 50% of cost trade in credit voucher to anyone who will replace their low mileage, high emissions vehicle with a new alternative fuel hybrid? We could transform the public fleet within years not decades.

Fatal Flaw #6: Displacement is not just about residents and housing

I’ve often said that all things being equal there can be no affordable housing without subsidy. In Wiener’s version of this, his legislation’s massive property rights give-away is that subsidy, which in his telling of it will magically result in for profit developers building so much housing that it will eventually become more affordable.

Aside from the fact that there is no evidence that increasing development and giving away development rights will decrease housing costs -- in fact, quite the opposite, because added development rights increase property values -- the falsehoods in this argument are too many to tackle here. So, I’ll confine my comments to those concerning the impacts on communities that will become designated as “transit rich,” under SB 827 (for a detailed discussion about realistic ways to create affordable housing click here).

In short, if Wiener’s vision is allowed to be realized, the majority of the San Francisco Bay Area’s long-standing communities will be decimated.

Gentrification and displacement in communities resulting from new, high density development tied to transit frequency, is not just about the plight of the poor and other disadvantaged populations -- though they are hit the hardest by it. Displacement within impacted communities will be equally destructive to local-serving businesses.

“Communities” are ecosystems comprised of a wide variety of participants engaged in intricately inter-dependent activities. In addition to residents, local-serving businesses include tire stores, auto repair shops, hardware stores, stationary stores, hair and nail salons, florists, tattoo parlors, yoga studios, mom and pop restaurants, light manufacturing, service providers like plumbers, cabinet makers, electricians, artisans and artists, writers, accountants, lawyers, architects, contractors, local nonprofits, and personal and medical care providers of every imaginable kind.

Most of these are small businesses. Many of them only remain viable, because their rents in older buildings are still reasonable.

To suddenly up-zone and transform property values to attract high density, mostly luxury housing and large-scaled commercial development, and to believe that rents will not rise and that existing communities will remain intact is just fanciful. With legislation like SB 827 we are looking at wholesale displacement of communities and their unique cultures.

Shiny new buildings and rising rents in close proximity, will inevitably drive out and replace struggling, local enterprises with coffee bars, trendy restaurants, boutiques, wine shops and art galleries.

And, in all this, we haven’t even talked about the impacts on the environment from this uncontrolled development, using the same bricks and sticks construction methods we’ve used for 60 years. It is amazing to me that Wiener and his fellow legislators are so willing to throw environmental protection under the bus to benefit multi-billion dollar (soon to be trillion dollar) corporations.

There was a time California was the leader in this. Now our politicians just carry water for major donors who will benefit from uncontrolled development.

In any case, if you identify with any of the local services, professions or businesses I’ve listed above, and you live within the ½ mile or ¼ mile of a “transit rich” area, as prescribed by SB 827, I suggest you either start fighting back or start packing.

Bob Silvestri is the founder and President of Community Venture Partners, a 501(c)(3) nonprofit organization that facilitates and assists community-based projects, programs and initiatives that demonstrate the highest principles of economic, social and environmental sustainability. CVP is committed to the need for a transparent, “bottom up” public process that incorporates under-served community voices into government decision making.

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