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Regional Growth Forecast Methodology for Regional Housing Control Total for Plan Bay Area 2050

The following letter has been sent to the Association of Bay Area Governments Executive Board, regarding the September 19th Executive Board Meeting, questioning the methodology used by ABAG to project regional growth forecasts leading to the regional housing control totals used for Plan Bay Area 2050.

Dear President Rabbitt and ABAG Executive Board Members:

I write on behalf of myself and other concerned citizens in opposition to adoption tonight of the Regional Growth Forecast Methodology for Regional Housing Control Total for Plan Bay Area 2050. Instead, the Methodology should be considered for adoption at a future meeting after my concerns and the concerns of others are addressed. This letter is to serve as written testimony for the public hearing (7.b) and related agenda items (7.b, 7.c, 7.d).

First, ABAG should address how its proposed Methodology comports with the State Housing and Community Development Department jobs / housing balance methodology called for in Government Code § 65890.3,

a guidebook for use by cities, counties, councils of government, state agencies, and the private sector in the planning and development of a housing supply to meet the need created by employment growth.

I find no evidence in your proposed Methodology that you consulted this HCD guidebook. I find no citations to the HCD Guidebook in your proposed Methodology, no discussion about it and no allusions to it. Government Code § 65890.5(d) required the Assembly Office of Research to complete

a study of the effectiveness of the guidebook as a decision-making tool by public agencies and the private sector to facilitate improved jobs-housing balance.

I cannot find a copy of the HCD guidebook or a copy of the Assembly Office of Research study in the ABAG/MTC Library. As best as I can tell, ABAG has completed ignored this HCD jobs/housing balance guidebook and the related Assembly report.

These omissions suggest that your proposed Methodology is not reasonable and is not supported by substantial evidence.

I ask that your Executive Board delay adoption of your proposed Methodology until ABAG carefully analyzes this Government Code § 65890.3 HCD jobs / housing balance guidebook and the related Assembly report.

Second, your Board should delay adoption of the Methodology until there is full disclosure of the peculiar 2014 ABAG/MTC legal settlement with Building Industry Association (BIA) that apparently gives BIA (the real estate development industry) undue influence over the Methodology.

BIA Senior Vice President of Government Affairs Paul Campos openly admits in an August 16, 2019 e-mail, “[T]he region now should make every methodological decision that . . . will establish the highest housing target for the region.”

The full, executed settlement agreement needs to be published by ABAG. Pursuant to the Public Records Act, Government Code §§ 6250 et seq., I hereby request all communications, including but limited to e-mails and letters, exchanged between BIA and its agents and/or ABAG and its agents and/or MTC and its agents from January 1, 2014 to present concerning the Methodology.

In the interests of full transparency, your Board should adopt the Methodology at a future date only after all of these documents are publicly disclosed and published to a section of the ABAG website, so that your Board and the public can rest assured that BIA has not exercised undue influence over the Methodology.

Third, your Board needs to delay adoption of the Methodology because once ABAG discloses the full 2014 ABAG/MTC legal settlement, there needs to be robust public discussion about what ABAG/MTC exactly conceded and what the terms of the settlement precisely mean.

I and others are deeply concerned that ABAG/MTC conceded their discretionary powers in perpetuity to powerful real estate development interests.

This raises important questions about whether or not ABAG/MTC and BIA negotiated the legal settlement with an “arm’s length” relationship and whether or not BIA and MTC (historically dominated by regional corporate interests) ganged up against ABAG (a traditional defender of local public entities and local decision-making) to force this settlement on terms most favorable to powerful real estate development interests. The Methodology at issue tonight apparently is the centerpiece of your BIA legal settlement so this is a matter of utmost gravity.

This apparent undue influence by BIA over ABAG’s Methodology suggests that ABAG’s proposed Methodology is not reasonable and is not supported by substantial evidence and not entitled to judicial deference.

Fourth, your Board needs to delay adopting the Methodology until key terms in the ABAG/MTC legal settlement with BIA are clearly and publicly defined. An unexecuted copy of a February 27, 2014 settlement agreement between BIA, ABAG and MTC is on the internet. It imposes this “obligation” on ABAG:

Regional Housing Control Total and Forecasted Development Pattern: The SCS shall set forth a forecasted development pattern for the region that includes the Regional Housing Control Total, which shall have no increase in in-commuters over the baseline year for the SCS, and shall not be based on historical housing production. The SCS will not use a “ratio” theory, which assumes the same percentage of in-commuters as historic levels of in-commuting. The SCS must demonstrate how all of the Regional Housing Control Total can be accommodated within the boundaries of the nine counties of the Bay Area.

This is an extraordinary concession of ABAG/MTC’s governmental discretionary power to corporate private parties in the real estate development industry and is an indirect assault on local land use controls by the Bay Area’s 101 cities at a “code red” level.

The terms “Regional Housing Control Total” and “in-commuters” are not well-defined in the agreement. The key term “in-commuter” is not defined at all.

ABAG/MTC’s concession to BIA, “shall have no increase in in-commuters over the baseline year,” is extraordinary, not reasonable and is not supported by substantial evidence.

This seems to mean that for every new job added in the nine-county Bay Area, a new housing entitlement needs to be provided somewhere in the Bay Area. This presumably will artificially and significantly inflate Regional Housing Needs Allocation numbers and force communities to “up-zone” against the will and best interests of existing neighborhoods.

Fifth, the proposed Methodology feeds into Plan Bay Area 2050 and regional transportation plans, but it is not reasonable and not supported by substantial evidence because MTC has not adjusted its transportation plans accordingly. If the “shall have no increase in in-commuters over the baseline year” is a paramount goal of Plan Bay Area 2050, then the regional transportation plan should not be inducing an increase of “in-commuters” to the Bay Area. I-580 Altamont Pass widening/auxiliary lane projects should be ceased.

Improvements to I-80 in Solano County also should be halted, along with improvements to U.S. 101 in the Gilroy to San Jose corridor and improvements to State Route 17 between Santa Cruz and Los Gatos. MTC should be lobbying to freeze improvements to I-205 in San Joaquin County. All of these projects facilitate and induce “in-commuters” by automobile to the Bay Area.

If “no increase in in-commuters over the baseline year” truly is ABAG/MTC’s goal, then projects such as Valley Link (train from East Dublin/Pleasanton BART station to Lathrop in San Joaquin County) needs to be re-thought and arguably should be eliminated from regional transportation plans. MTC also would need to re-think the ACE Train extension to Modesto, Ceres and elsewhere in the San Joaquin Valley because those projects also could counteract ABAG/MTC’s purported “no increase in in-commuters over the base-line year” commitment.

Some studies of the BART extension into central Contra Costa County in 1973 have shown that arrival of BART actually induced more “in-commuting” by private automobile from central Contra Costa County to elsewhere in the Bay Area.

Sixth, ABAG and MTC were not reasonable in making the 2014 settlement agreement with BIA because there is no evidence that BIA and its members agreed to anything that would help to fulfill its purported purpose. The settlement agreement includes,

“All Parties understand and agree that neither the Agencies, nor individual local jurisdictions have legal authority to prohibit employees who live outside the region from commuting to jobs in the region.”

If BIA truly cared about “no increase in in-commuters over the baseline year,” then it would have agreed to curtail “in-commuters.” BIA would have agreed to reduce housing construction serving Bay Area “in-commuters” in San Joaquin and Stanislaus counties. Or BIA would have agreed to legally-binding mitigation for housing outside the Bay Area that is occupied by Bay Area “in-commuters,” such as transportation impact fees and other fees aimed directly at “in-commuters.” Or BIA could have agreed to support construction of toll plazas on I-580 Altamont Pass, SR 17 in Santa Cruz Mountains, U.S. 101 near Gilroy and I-80 near Dixon to actually dis-incentivize “in-commuters.”

Instead, BIA gets to have its cake (continue to build housing outside of the Bay Area for in-commuters) and eat it, too (adoption of the Methodology on BIA terms would force new entitlements for housing inside the nine-county Bay Area even though new “in-commuters” fill those new jobs). BIA is the winner and ABAG’s 101 cities are the losers no matter how the proverbial coin is flipped: “heads” – BIA wins (forces ABAG cities to issue new housing entitlements and continues to build housing for Bay Area “in-commuters” in Central Valley), “tails” – ABAG loses (ABAG cities cede local control, accommodate new residents AND cope with increased traffic from “in-commuters” from projects that BIA members continue to build outside of the Bay Area).

The ABAG Executive Board should not permit this local control-busting “Bay Area housing entitlement grab” to occur without careful, deliberate study. BIA, in apparent cahoots with their corporate-captured partners within MTC, hatched this power grab five years ago. Now it is coming to fruition.

Your Board cannot act approve this Methodology tonight as it is unreasonable, not supported by substantial evidence and apparently imposed under undue influence from external, private sector actors.