Two regional agencies battling over the future of Bay Area planning — with social justice in the balance
By Zelda Bronstein
JULY 21, 2015 –At a time when California state officials are steadily expanding the authority of regional governance, a nasty rift between the powerful Metropolitan Transportation Commission and the Association of Bay Area Governments has burst into public view.
Like the smoke and lava belched by a volcano that’s about to blow its top, portents of the rupture have surfaced at recent meetings.
At its June 24 session, MTC, the moneybags of the duo, voted to fund ABAG’s planning and research staff for only the next six months instead of the customary full year.
At the July 10 joint meeting of the MTC Planning Committee and the ABAG Administrative Committee, MTC staff recommended that key anti-displacement language that appears in Plan Bay Area 2013 be stricken from the plan’s 2017 update; the ABAG staff report vehemently objected to the deletion.
The July 16 agenda of ABAG Executive Board included a staff report on MTC’s alleged proposal to move ABAG’s Planning and Research Department to MTC. That’s the institutional equivalent of a heart transplant.
In short, this is no bureaucratic squabble but rather a major power struggle. The antagonists are two public agencies whose decisions about housing, land use, and transportation are profoundly reshaping the life of the region (think Plan Bay Area, for starters).
As the dispute over anti-displacement suggests, should MTC prevail, social justice in the Bay Area is going to suffer.
I wrote the foregoing sentence with hesitation. I’ve observed both MTC and ABAG for many years; up to now, they’ve seemed equally high-handed and opaque.
The events of the past few weeks have altered my perception. Above all, the clash over anti-displacement policy revealed MTC’s allegiance to the greedy real estate industry and ABAG’s willingness to oppose that industry in behalf of the region’s most vulnerable residents—and common sense.
The clash occurred in the course of a discussion about the goals of Plan Bay Area 2040, the region’s state-mandated Sustainable Communities Strategy, which aims to reduce greenhouse gas emissions by integrating land use and transportation planning. PBA’s first, controversial iteration, officially knowns as Plan Bay Area 2040, was approved in July 2013. California law requires that each SCS be updated every four years. We are now in the early stages of the tortuous update process.
On July 10 the MTC Planning Committee and the ABAG Administrative Committee deliberated whether and how the goals and targets in the adopted Plan Bay Area should be revised.
Scanning the chart of recommended changes, I was surprised to see that under the goal of “Adequate Housing,” ABAG and MTC staffers had submitted conflicting recommendations.
The phrase “without displacing current low-income residents” was inserted into Plan Bay Area in 2013 thanks to the vigorous public campaign undertaken by the Six Wins for Social Equity Network.
ABAG staff wants to keep the anti-displacement language in the updated Plan Bay Area as the performance target under Goal #2.
MTC staff wants to replace that language with “no increase in in-commuters” (people who live outside the region driving in for work). They think displacement can be addressed under a new “performance target” for Goal #6, “Equitable Access”: “increase the share of affordable housing in PDAs” [Priority Development Areas—places that local jurisdictions have nominated for high-density construction].
In a memo to the joint committees, ABAG Executive Director Ezra Rapport contended that MTC’s proposed “performance target” of no increase in in-commuters was “unrealistic.” In contrast to the other “performance measures in the Plan,” Rapport wrote, “….there is no known policy that holds the in-commute of residents from neighboring counties to the Plan baseline year.”
Moreover, given the growing employment in the region, “particularly in the Tri Valley and Silicon Valley, the historical trend shows that there will be an actual increase of in-commuters over the baseline year.”
So to adopt a zero increase in the commute policy “will be misleading,” not only “to the public and other stakeholders who are concerned with the impact of the forecasted increase in in-commuting particularly in the 580 corridor,” but also “to other agencies that rely on ABAG’s forecast for infrastructure planning.”
In the regional division of planning duties, ABAG has responsibility for land use and housing, MTC for transportation.
MTC Executive Director Steve Heminger issued his own memo describing “MTC staff’s rationale” for removing the phrase “without displacing current low-income residents.”
Heminger began with the “statutory” factor:
We have customarily referred to the first two performance targets (the other relates to greenhouse gas reductions) as the “statutory” or “required” targets because they are contained in – or derive from – Senate Bill 375. As currently stated [“without displacing current low-income residents”] however, performance target #2 does not quite measure up to that mark in two respects.
It falls short, he averred, because SB 375 says nothing about displacement.
Then there’s the enforceability problem. “Obviously,” Heminger wrote,
….there are no policies that can guarantee the in-commute result. Neither agency can force prospective homeowners to live in the Bay Area instead of the Central Valley. But neither can we force the region’s residents to ride in the bicycle lanes we will construct in an attempt to meet performance target #8 [“Transportation System Effectiveness”]. Nor can we require commuters to patronize the new rail lines and bus service we will provide in an attempt to meet performance targets #7 [“Economic Vitality”] & 10 [“Transportation System Effectiveness.”].
Heminger also ridiculed Rapport’s contention that other infrastructure planning agencies would be misled by the MTC proposal:
Well, the most notable such infrastructure agency is MTC itself—and we don’t feel at all misled. To the contrary, we believe it would be deeply misleading to adopt a performance target that ignores a legally-enforceable settlement agreement on the very same subject.
Now, it’s true that you can’t force people to stop driving into the region to work, any more than you can force them to live in the Bay Area or to get on bicycles or BART or buses.
And Rapport set himself up for Heminger’s gibe about MTC misleading other agencies in the region that do infrastructure planning.
But the argument that the “statutory” rubric forecloses the inclusion of anti-displacement is lame. If that’s a problem, change the rubric.
Heminger’s reference to “a legally-enforceable settlement” is a different story—one that illustrates MTC’s affinity with the agents of property capital.
After Plan Bay Area was approved in 2013, MTC and ABAG were sued by the Building Industry Association of the Bay Area.
BIA is one of the most pernicious forces in California public life.
In 2010, for example, the California BIA sued San Jose over the city’s inclusionary housing ordinance. The law required developers of projects larger than 20 units to set aside 15 percent of those units as affordable. For five years, affordable housing advocates held their breath, as the case wended its way through the courts. In June they could finally exhale—and cheer: the California Supreme Court upheld the law.
Last week, the California BIA helped to stall SB 465, a bill intended to help prevent disasters like the recent lethal balcony collapse in Berkeley. Sponsored by Democratic Senators Jerry Hill of San Mateo and Loni Hancock of Berkeley, SB 465 required licensed contractors to voluntarily report to Contractors State License Board any criminal convictions or large settlements against them resulting from defective construction. “Opponents,” reported The Sacramento Bee,
including the California Building Industry Association, countered that settlements are often a means of avoiding even costlier litigation and provide no information on the merit of the claims. They argued that the bill could open them up to more frivolous lawsuits.
In August 2013 the Building Industry Association of the Bay Area sued MTC and ABAG for not having counted in-commuters—people who drive into the region to work—as part of the region’s population in Plan Bay Area. BIA argued that the agencies had thereby violated SB 375. The organization also claimed that the state law requires each Sustainable Communities Strategy to
identify areas within the region sufficient to house “all” of the region’s population, including all economic groups, taking into account net migration into the region, population growth, household information, and employment growth.
The suit was settled out of court. Here’s a key passage in the settlement agreement:
6a. 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 [the estimated total number of units needed to accommodate all of the families in the region plus the number of housing units that correspond to the in-commute increase], which shall have no increase in in-commuters over the baseline year for the SCS, and shall not be based on historical housing production.
Citing the settlement agreement, Heminger’s memo asserted:
[I]t would appear that ABAG staff’s real objection is to the way state law is phrased and the manner in which the BIA Bay Area’s settlement agreement requires us to interpret that law. But the law says what it says, and the settlement agreement was freely entered into by both MTC and ABAG and is binding on both parties for Plan Bay Area 2040 and all subsequent updates.
To back up his claims, Heminger attached to his memo a four-page opinion from MTC’s outside counsel, the Thomas Law Group.
Strikingly, neither Rapport nor Heminger addressed the causal relationship between growing displacement and increased in-commuting—the fact that the region’s most vulnerable residents are being pushed out of their homes by the gentrifying effects of new housing in our region.
BIA’s attempt to invalidate inclusionary housing in California highlights what has long been clear: despite its homage to SB 375, the real estate industry could care less about “accommodating all of the families in the region.” What it wants is the right to build as much as it can, at will, and the group supports legal mechanisms that favor that right. Requiring Plan Bay Area to count in-commuters as part of the region’s population is one such mechanism. No matter that extortionate housing prices are forcing many Bay Area workers to move out of the region and drive back in to their jobs. Indeed, policies and laws that protect poor residents from displacement only interfere with the real estate industry’s prerogatives.
At the joint commitees’ July 10 meeting, the connection between unaffordable housing, in-commuting, and displacement would take center stage.
The public disagreement between the staffs of ABAG and MTC was unusual and momentous. At every level of government, elected officials depend on staff for analysis of complex issues that they don’t have the time or the expertise to parse on their own. The broader the jurisdiction, the greater the complexity and the dependence.
The elected officials who occupy most of the seats at MTC and ABAG must rule on land use, housing, and transportation policy and funding for the whole Bay Area, which officially encompasses 101 cities and nine counties. ABAG and MTC voting members operate as regional officials without personal aides, the likes of which serve them in their municipal and county capacities. It follows that they depend heavily on the recommendations of MTC and ABAG staff.
As a rule, the staffs of the two agencies present a united front, which prompts the typically concordant (I’d say, too-concordant) discussion at the MetroCenter.
When the staffs put forth dueling recommendations about Plan Bay Area’s displacement and affordable housing policies, they set the stage for a contentious—and illuminating—exchange.
ABAG Planning Director Miriam Chion tried to avert friction by disclosing that ABAG and MTC planning staffers were still “working on the language” for Goal/Target #2. She said she was “optimistic” that they would “meet the expectations of ABAG, MTC and BIA.”
But consensus was not in the cards.
MTC Commissioner and Alameda County Supervisor Scott Haggerty said he wasn’t sure he shared Chion’s optimism about reaching a resolution agreeable to all three parties.
For one thing, he’d heard “some objections from ABAG staff during discussion of how to settle with BIA.”
For another, the settlement language notwithstanding, “the agencies lack the legal authority to prohibit in-commutes.”
Finally, Haggerty asked the agencies to “realistically address the impacts of inter-regional travel.” On Friday morning he’d sent a letter to the two committees asking that before adopting a target of “no-increase in in-commuters over the Plan baseline year,” MTC staff “fully disclose the implications of this policy on infrastructure policy for the Tri-Valley”—i.e., his district—“where a substantial in-commute increase is projected beyond the baseline.” He cited a passage in the settlement agreement that “make[s ]allowance for [MTC’s] full discretion and authority over transportation funding decisions” and “allows for the inclusion of specific metrics and inputs.”
On July 16, I emailed Haggerty aide Marianne Payne with the question: Is the supervisor concerned that a no in-commuting increase policy might foreclose funding that addresses the real-life growth that’s projected for the Tri-Valley?
Payne emailed back:
Yes, he would like decision-makers to be fully informed when making funding decisions for transportation infrastructure.
The bigger issue to consider is the lack of inter-regional planning that is occurring and that is an area he would like to see addressed going forward.
We seem to have outgrown the borders of the Nine-county planning area and the I-580 corridor is suffering from the fallout of this. It’s the workhorse of the region – a significant regional and interregional commuter route and also a major gateway for goods movement to and from the Bay Area’s seaports. It is one of the most heavily congested highway routes in the Bay Area – with the second highest volume of truck traffic.
He is concerned about congestion and the impact it has on air quality, quality of life and the economy.
Responding to Haggerty, Heminger ignored the contradiction between MTC’s proposed policy and projected reality. He said that ABAG Chief Economist Cynthia Kroll is still developing the commuter numbers that will appear in the PBA update. And he put out a few statistics (the technocrat’s WD-40): today about 100,000 people are driving into the Bay Area to work; they account for about 3% of travel in the region; MTC expects to see 40,000 more in-commuters over the next thirty years.
Heminger also gave Haggerty a little tweak: “We showed you the same numbers at the time of the settlement agreement,” (so why are you bringing this up now?), adding that “[t]he agreement requires us to carry out this process.”
ABAG Chair and Clayton Councilmember Julie Pierce echoed Heminger’s view of the agreement’s implications for Plan Bay Area and offered MTC executive director a kudo: “Steve, I appreciate your mentioning the moving of the displacement issue into Target 6. I think that keeps this much much cleaner.”
In fact, MTC wants to cut, not move, the language about displacement.
Then things got really heated.
MTC Commissioner and San Francisco Supervisor David Campos delivered a fiery denunciation of MTC’s proposals, which he called “unfortunate and disgraceful.” If we’re going to move forward with this, I think we need to have a closed session.
Campos said he “didn’t understand the settlement agreement…to preclude the language that ABAG has proposed. If that’s the case, then I think we need to have a closed session.”
Indeed, he continued,
“I can’t believe that [eliminating that language] is even a consideration….How can you talk about adequate housing when you’re not actually saying that you’re not going to displace poor people?…If we move forward with this, which I think is a real mistake, I hope that there is a lawsuit…[brought by] the entities out there that are concerned about low-income people.”
Campos was followed by ABAG Administrative Committee member and Napa County Supervisor Mark Luce, who announced, “I’m almost going to repeat what David just said.”
“I was part of the negotiations with BIA. I understood BIA’s interest in adding numbers to what would otherwise be calculated as the RHNA [Regional Housing Need Allocations]…. In order to cut off our legal costs, we agreed to add numbers based on the calculation of what that in-commute would be. But at no time did we ever agree that we would have the goal of no in-commute…”
Moreover, Luce averred, the in-commute goal is “constitutionally inappropriate and wrong. We have no right to restrict travel.”
Luce also rapped MTC’s notion that displacement of poor Bay Area residents could be addressed by more affordable housing in Priority Development Areas. “[T]he issue of displacement came up,” he recalled,
“when we talked about investing in low-income housing in these PDAs—getting to the notion that the people who lived there would not be the beneficiaries of that investment, and that there would be displacement by the fact that we were creating more affordable housing in those areas.”
Luce was referring to a little-understood and even less-addressed but critical disconnect between housing policy and the local economy: what’s officially affordable (based on HUD standards) in the Bay Area is often too expensive for people who can’t get into our region’s insane housing market, where prices are currently set by tech-worker incomes and international capital.
It seemed to me that Luce had misread the settlement agreement: he contended that the regional agencies had never agreed to “the goal of no in-commute”; but the settlement agreement stipulated that Plan Bay Area had to accommodate the region’s entire population and entail “no increase in in-commuters over the baseline year for the SCS.” Isn’t there a contradiction here?
I put that question to Luce on July 14.
In an emailed reply, the Napa County supervisor wrote:
[O]ur efforts should be to interpret the BIA agreement in context. ABAG insisted wording be added to the agreement that increased the housing allocation, per the desire of BIA, while not making wild policy promises that could not be accomplished.
Luce thinks one such “wild policy promise” is no increase in commuting from outside the region, because it doesn’t take into account commutes between counties, including short commutes between counties that border two regions.
If we really want a “no in-commute” policy, then it should be applied to each county, not just at a regional level. Why should we resist commuters from Lake County into Napa County while saying nothing about commuters from Sonoma County into Napa County?….Implementing a no in-commute goal at our regional boundary serves no real value, interferes with the relationships with our border counties, and may actually make the commutes within the region worse. In short, if we are going to restrict in-commutes, it should be applied to each county….
However, as powerful as a county by county no in-commute goal would be, I believe the best way to address the goal of shorter commutes is to have the goal of shorter commutes regardless of which county or region the commute originates.
Makes sense to me.
What makes even more sense is Luce’s further argument that the commute problem reflects the lopsided jobs-housing mismatch in the Bay Area:
[W]hy continue policies that create a group of bedroom counties and a group of job counties within our region, with long commutes between them, while only concerning ourselves with the short commutes between our border counties?
Over the phone, Luce told me: “The building industry is not trying to address” the imbalance between jobs and housing. “What [BIA] wanted was that housing.”
I note here, as I didn’t in my conversation with Luce, that Plan Bay Area worsens the jobs-housing imbalance by stuffing ever-more jobs into three “job centers”—Oakland, San Francisco, and San Jose—and by assuming that growth per se is an absolute good.
Back at the July 10 meeting, Novato Mayor Pro Tem and ABAG Executive Board member Pat Eklund joined the fray. After explicitly allying herself with Campos and Luce, Eklund objected to MTC’s versions of performance targets #2 and 6. Furthermore, she said she saw “no explanation in the staff report of how a no in-commute increase is going to be determined.”
Then San Francisco Supervisor and MTC Commissioner Scott Wiener spoke. He began by urging that the MTC proposal be amended to include the displacement language. The two components, he said, “don’t seem mutually exclusive.”
Wiener went on to defend the no in-commute increase policy:
“I don’t read this at all as saying we’re somehow—it’s pretty clear…what the language in the settlement is—trying to bar people from commuting….[C]onstitutionally, of course, we can’t do that, nor should we do that. People can live and work where they want to live and work, and that’s their choice, and their choice only.”
Nevertheless, “trying to reduce the in-commute” is “a laudable and important goal….There might be [an increase], and if there is, that’s life.”
Wiener then tied in-commuting to the displacement of poor Bay Area residents from their homes:
“But I don’t think that because we can’t somehow enforce [the no in-commute increase policy] or because it might not happen, that we shouldn’t try, [or] that it shouldn’t be one of our target goals, because we know that when you have continual growth of the in-commute, that the environment is going to disproportionately impact low-income people and in fact, [with] increases in the in-commute, low-income people are being pushed out and are forced to in-commute—they don’t have any choice in the matter—because they can no longer afford to live where they work….It ties directly to a lack of affordable housing….In fact, the lack of displacement language, and the desire not to increase the in-commute—to me, are really linked one to the other.”
The San Francisco supervisor seemed to be saying that people driving into the Bay Area to work are displacing the region’s poor residents.
In truth, it’s the other way around: it’s displacement of the region’s poor residents that’s forcing people live outside the Bay Area and to drive back in to work.
Does Wiener really think that in-commuting is causing displacement? I sent that question, sans “really,” along with my transcript of his remarks, to his office. Wiener aide Jeff Cretan consulted his boss and got back to me with a one-word reply: No.
Wiener also questioned the affordability of officially affordable housing. “Commissioner Luce,” he said, “you raise a good point: when you build affordable housing, who is it for?” Are you “prioritizing existing residents?….In San Francisco we intend to provide a geographic preference for a portion of affordable housing that’s built.” Wiener was referring to legislation that he’s co-sponsoring at the Board of Supervisors.
In the face of the concerted opposition, Heminger backtracked. He allowed that he’d “confused matters….The two changes [replace displacement language with no in-commute increase, and address displacement by building more affordable housing in PDAs] we’re recommending are not related to each other. There’s nothing in the BIA settlement
“that constrains how we deal with displacement. The only reason we were recommending…moving the [displacement] language is that we have used the words “required” or “statutory” in describing the first two measures [in the adopted, first edition of PBA]. So if the Board…would like to maintain that displacement language, I suggest that we not mischaracterize them and call them ‘required’ or ‘statutory.’”
Yes.
Heminger then repeated that the two changes “are not related” and added: “We just happen to have them both before you, because they relate to the same metric.” Huh?
Nobody followed up on that confusing assertion.
Instead, Solano County Supervisor and MTC Commissioner Jim Spering, who chairs the MTC Planning Committee, asked, “What is the definition of displacement?”
Turns out that the regional agencies don’t have definition. Heminger suggested that formulating one is going to be “difficult.”
“What [displacement] means locally,” observed the MTC executive director, “may be different from what it means regionally. Frankly, we do not have a good working definition of what displacement means for a Sustainable Communities Strategy.”
To which the chair of the MTC Planning Committee, Solano County Supervisor Jim Spering declared, “We’re doing this completely ass-backwards.”
Another complication was suggested by Marin County Supervisor and MTC Planning Committee member Steve Kinsey: If people are forced out of their current housing but stay in the region, that’s “not considered displacement.” Should it be?
Tom Azumbrado, the HUD rep who sits on the MTC Planning Committee, brought up the example of “voluntary migration or voluntary relocation, which is allowed and is being used a lot, especially with housing choice vouchers.”
Right off, I’d say that wasn’t displacement, which I associate with forced mobility.
But what if you’re using a housing choice voucher because you were forced out of your rental?
Before deciding how to proceed, the joint committees invited public comment. In fact, they’d already received at least three letters commenting on the disagreement between MTC and ABAG staffs over the updated Performance Targets.
Two of those letters expressed support for MTC’s position. One, dated July 7, was the Bay Planning Coalition missive that noted above.
On its website, the BPC says it’s “the sole organization focused specifically on the economic interests and vitality of the Bay”:
a non-profit, membership-based organization representing public and private entities in the maritime industry and related shoreline businesses, ports and local governments, landowners, recreational users, labor unions, residential and commercial builders, environmental and business organizations, and professional service firms in engineering, construction, law, planning, and environmental sciences.
The BPC’s 33-member board includes BIA executive Paul Campos. (Campos, by the way, is one of the two “Housing” representatives on the ABAG’s Regional Planning Committee. The other is Michael Lane from the Non-Profit Housing Association of Northern California).
In its letter, the Bay Planning Association registered
its support in the strongest possible way for the MTC staff’s proposed language for the Adequate Housing Performance Target for Plan Bay Area 2.0. Stated plainly, MTC’s proposal represents good-faith impementation of SB 375’s requirement (recognized by both MTC and ABAG in the BIA Plan Bay Area Settlement Agreement) for our region’s Sustainable Communities Strategy to plan for adequate housing within the region (emphasis in original).
The BPA also assailed ABAG staff, asserting that their
proposal simply represents “business-as-usual” and a clear retreat from the cooperation and consensus represented in the Settlement Agreement’s approach to proper implementation of SB 375’s fundamental housing requirement. Even more troubling, the ABAG staff report embraces a defeatist attitude toward our region’s ability to provide adequate housing for people of all income levels, and puts forth the remarkable ‘justification’ that nothing in Plan Bay Area can improve our region’s chronic undersupply of new housing. Needless to say, we reject such pessimism.
The BPA email had many attachments, including two July 7 emails from BIA Senior Vice President of Governmental Affairs and General Counsel Paul Campos. (Campos sits on ABAG’s Regional Planning Committee as one of the two representatives of “Housing.” The other rep is Michael Lane from BIA’s sometime ally, the Non-Profit Housing Association of Northern California.)
Paul Campos’ emails were both addressed to members of the Bay Area Business Coalition, an entity comprising the Bay Area Council, the Bay Planning Coalition, BIA Bay Area, the Contra Costa Council, the East Bay Economic Development Association, the Oakland- based Jobs and Housing Coalition, the North Bay Leadership Council, the San Mateo County Economic Devleopment Association, and the Solano Economic Development Corporation.
In a message sent at 11:05 am, the BIA’s Campos wrote:
You will recall that the business community viewed the final Plan Bay Area that was adopted by MTC and ABAG as not planning for adequate housing within the region, with the foreseeable result (confirmed by the Plan Bay Area EIR) being a continuing increase in the number of people with jobs in the region but unable to afford housing and being forced to in commute from areas such as the Central Valley. BIA Bay Area filed a lawsuit on this issue, arguing that Plan Bay Area violated SB 375 by continuing “business as usual” for the region in terms of continuing the historical practice of planning insufficient housing within the region so that the number of in commuters will continue to increase each year. BIA and the regional agencies settled the lawsuit with the Settlement Agreement among other things requiring the agencies to calculate the region’s overall housing need in such as way that there would be adequate housing planned within the region so that there would be no overall increase in incommuting over a baseline year. MTC and ABAG will be considering the overall Housing Performance Target at a joint meeting of MTC’s Planning Committee and ABAG’s Administrative Committee on Friday, July 10.
The two agencies are in conflict over how to approach the Housing Performance Target, with MTC proposing to adhere in good faith to SB 375’s and the Settlement Agreement’s requirement to plan for adequate housing within the region while ABAG is proposing to retain the same flawed language from Plan Bay Area 1.0. While this is very disappointing from ABAG, it is not altogether unexpected as ABAG staff fought the Settlement Agreement tooth and nail, and played on some local governments’ hostility to increasing the region’s housing supply.
Paul Campos’ second email, sent at 1:54 pm, read as follows:
Dear Colleagues,
I’ve attached the letter that BIA sent today to the MTC Planning Committee and ABAG Administrative Committee members supporting MTC staff’s proposal regarding the Plan Bay Area 2.0 Adequate Housing Target. I’ve also attached a spread sheet with Committee member email contact information. This item (Agenda Item 6) will be discussed at the joint meeting this Friday, July 10.
Again, if your organization could submit a similar letter before Friday’s joint meeting that would be extremely helpful. And if you are able to send a representative to testify at the hearing, that would be great.
On July 8 one of the recipients’ of those emails, Jim Wunderman, President and CEO of the Bay Area Council, answered the call to action by sending the joint committes an email supporting MTC.
On its website, the Bay Area Council calls itself “The Voice of Bay Area Business.” Make that big business.
Wunderman presented BAC as a champion of affordability and the environment:
According to ABAG’s computation of data on commute flows shown on page 77 of its State of the Region 2015 report, even five years ago more than 162,000 people commuted to jobs in the Bay Area from outside it on a daily basis. This number has likely increased substantially as home prices have gone up and construction of new housing units close to job centers has not kept pace with regional job growth.
….As we work on this new iteration of Plan Bay Area, there are efforts in Sacramento to require additional major reductions in greenhouse gas emissions targets.
As a result, it is imperative that we make the best possible effort to increase housing growth within our region, with its cooler temperatures, and near to regional job centers in particular. If we do not, our only option will be to spend millions to build the mass transportation systems necessary to accommodate commuters from outside the reigon. We will also be forced to answer to the future generations who will be unable to live here.
A third letter, emailed on the morning of July 10 by Peter Cohen and Fernando Martí, the co-directors of the San Francisco Council of Community Housing Organizations, protested MTC’s proposed removal of anti-displacement language in the Adequate Housing Performance Target for Plan Bay Area 2.0.
Speaking for 23 community-based housing developers, service providers, and tenant advocates, Cohen and Martí charged that
stripping out the existing language….would be a complete reversal of the MTC Commission’s and ABAG Board’s commitment to a “sustainable communities strategy” for the Bay Area future that ensures every effort to protect residents from being displaced from their existing homes. To call this a “modest change” (MTC staff report, pg 2) is a dramatic understatement and quite disingenuous.
The CCHO co-directors reminded the joint committees that the
words — “without displacing current low-income residents” – were added to the Adequate Housing performance target in the adoption process for Plan Bay Area 1.0 after persistent and thoughtful advocacy by a very wide range of community stakeholders from environmental, housing, labor and social equity perspectives.
The reason MTC proposed to wipe out “with a stroke of the pen” the agencies’ commitment to the region’s poor residents was “to apparently mollify the Building Industry Association and the Bay Area Council.”
While the BIA may consider controlling in-commuting to be the main challenge in ensuring a successful Bay Area growth vision, a much broader set of stakeholders consider controlling displacement (whether to outside the region or within the region) to be the challenge in ensuring a successful, and equitable, Bay Area growth vision.
That is why the MTC Commission and ABAG Board adopted that language in Plan Bay Area in the first place, as an acknowledgment that while development is promoted in the plan, the MTC and ABAG do not blithely accept displacing residents from their existing homes as collateral damage from infill growth in our communities.
Declaring themselves “perplexed as to why MTC and ABAG staff have set up this issue for your committee as a ‘choice’ between two policy goals,” Cohen and Martí offered an “additive” option:
House 100% of the region’s projected growth by income level (very-low, low, moderate, above-moderate) without displacing current low-income residents and with no increase in in-commuters over the Plan baseline year.
During live public comment, MTC’s proposed changes came in from additional criticism from members of the Six Wins for Social Equity Network.
Bob Allen, Director of Policy and Advocacy Campagins at Urban Habitat, urged the agencies to include language about displacement in target #2, and to specify the housing in #6 as “affordable to and occupied by low–income households.”
David Zisser, staff attorney with Public Advocates Inc., observed that “PDAs are not the only places where transit investments are made” and pointed out that the Six Wins’ “Environment, Equity and Jobs” alternative to the official draft Plan Bay Area had identified “other transit-rich and high-opportunity areas.”
The joint committee also heard from supporters of MTC’s recommendations, including Randy Kinman, who sits on MTC’s Policy Advisory Council as the representative of the low-income community of Santa Clara County. Kinman also chairs the council. She reported that on the previous Wednesday afternoon she and her colleagues had voted 11-3-3 to approve the transportation agency’s recommendations. Like Zisser, she recommended that #6 be amended to include “high-opportunity and transit-priority areas” in order “to take pressure off the PDAs.” Kinman also noted, in a regretful tone, that she and her fellow councilmembers hadn’t realized that MTC and ABAG were still discussing new language.
Another member of MTC’s Policy Advisory Council also spoke at public comment: BIA Bay Area Executive Officer Glover. (Glover sits on the Policy Advisory Council as one of the two “Economy” representatives. The other is Jerry Levine, a former San Francisco Planning Commissioner who worked for many years for the City and County of San Francisco.)
Glover was brief and restrained:
“I think the dialogue here today has been extremely beneficial. I’m glad that the two items are being separated—that’s an important point. You have a letter from our organization detailing our concerns and our support with #2—the MTC proposal. I think Mr. Heminger has accurately conveyed the meaning of the lawsuit….At the end of the day, BIA, ABAG and MTC all entered into that settlement agreement. We look forward to continuing in good faith as we move forward in this process.”
He and his confederates at MTC had lost this round, but Glover knew that the fight wasn’t over.
At the end of public comment, Spering declared, “Let’s bring it back to the committee.” Instead, seeking to “wrap up” the discussion, Spering turned to staff: “Okay, Steve and Ezra: what kind of direction are you looking forward from us here today?” Marking the diversity of opinion, and recalling David Campos’ call for a closed session, Spering also asked MTC General Counsel Adrienne Weil to research the legal parameters of such a meeting. Weil said she’d review the committees’ discretion under the Brown Act.
Rapport was notably reticent, stating only that he thought “the two performance measures of displacement and in-commute [were] very important, that we need to understand the factors that drive those issues,” and that he “[didn’t] feel the conversation has matured enough for us to make a recommendation.”
Heminger, noting that they’d been given “a lot of work,” commented on the incongruity of assigning the displacement issue to his agency.
“We’re used to dealing with parked cars and pavement,…and at some point I do think we’re running the risk of stretching the limits of our capabilities here, in terms of what we can model, what we can measure, and what we can report back to you in confidence.”
Undaunted, Spering asked Heminger to report samples of where displacement is happening, why, and “what we can do to discourage it.”
The executive directors are supposed to report their findings in September.
Addressing Campos, Spering quipped: “David, you need to be patient as MTC transitions from a transportation agency to a housing authority.” Everyone laughed.
But the looming prospect of just such a transition is no laughing matter.
Dismaying in its own right, MTC’s proposal to exclude crucial anti-displacement language from Plan Bay Area 2.0 becomes downright ominous in light of MTC’s apparent bid to take ABAG over.
I say “apparent,” because MTC officials deny any predatory motives with respect to their partner agency.
The facts, however, suggest otherwise.
Consider the proceedings of the Metropolitan Transportation Commission’s June 24 meeting, at which MTC voted 11-2 to extend the current MTC-ABAG memorandum of understanding and funding agreement for only six months (through December 31, 2015), in an amount not to exceed $1.9 million. Both San Francisco representatives on MTC, Wiener and Campos, voted Yes. Pierce and Scott Haggerty cast the two No votes.
The money will support ABAG’s research, planning, and implementation activities. Previously MTC has approved such funding for the full year referenced in the MOU. Heminger said that money for the second half of the fiscal year was in the MTC budget and would be released, depending on the outcome of a review in December.
ABAG President Julie Pierce, who also sits on MTC, was not appeased. She called the motion for the six-month funding, which had been made by MTC Chair and Santa Clara County Supervisor Dave Cortese, “a slap in the face” that “shows a huge distrust of a partner agency.”
Indeed, the discussion about the funding was preceded by a report from two auditors from Price Waterhouse Cooper, whom MTC had hired to investigate ABAG’s use of funds awarded by MTC between July 1, 2012 and February 28, 2105. PWC “engagement partner” Joan Murphy reported that she and her colleagues “did not identify any abuse or misuse of MTC funds as part of our procedure.”
(Last week I asked MTC staff how much that investigation cost. The answer: $187,827.)
Of course, MTC has the right, not to say the responsibility, to make sure its allocations are being used responsibly.
But both the audit report and the six-month funding decision occurred in the course of a discussion that raised a far more consequential prospect: that MTC would absorb ABAG’s planning and research staff, if not most of the rest of the land-use and housing agency.
Turns out that for the past few months, an ad hoc committee of elected officials who have served on the boards of both agencies has been meeting with Pierce and Cortese to discuss, as Cortese carefully put it in his chair’s report, “whether a different structural relationship between the MTC and ABAG planning departments might result in a more coherent and efficiently planning process for developing Plan Bay Area 2040.”
That sounds fairly innocuous. We’re all for more coherent and efficient planning.
But here, as in so many other places, what’s called a quest for coherence and efficiency is really a pursuit of power.
It was MTC Commissioner and Solano County Supervisor Jim Spering who gave the game away:
I support the Chairman’s motion but, you know, the real issue that is before us, and it’s kind of the elephant in the room, nobody wants to talk about, is that we have two planning staffs, two executive directors, two processes there going that are in direct conflict. It is not working for the region, and it’s what led us into the lawsuit that we had with BIA. You know, as Chairman of the planning committee, I’m talking to our staff. It is dysfunctional. Our staff is being demoralized….And you have really two conflicting, I think, interests as you go forward…. one way or another this commission has to say, “Yes, this arrangement is acceptable,” or “No, it is not.”
Spering observed that the Bay Area is the only region in California where the planning duties of the state-required Metropolitan Planning Organization are split between two agencies.
But so what? If they can work together successfully, who cares?
The Solano County supervisor then outed another elephant in the room: the agencies are scheduled to move to their fancy new San Francisco headquarters at 375 Beale Street, at the end of December—exactly when MTC’s six-month funding of ABAG staff will come up for review.
Spering said that he didn’t want questions raised by the move to be
“masked by this contract or whether we are going to fund [ABAG] or not….[I]f we are going to consolidate the staff…, this is the right time to have that discussion, not after we get into the building and we are bringing all of these organizations together.”
That explained the timing of the attenuated funding agreement and clarified the babble about greater efficiency and coherence.
In fact, the costs of the move to the former post office building in San Francisco, a controversial project dreamed up by MTC, make a mockery of MTC’s professed concerns about efficiency. According to Chronicle columnists Matier and Ross, as of last November, the price tag for rehabbing the new building had ballooned to $155 million—more than double the original estimate.
Ditto for the extravagance of Heminger’s international conference-hopping: last December, Bloomberg Business reported that between January 2012 and December 2014, the Bay Area’s transportation planning director had spent $45,000 of taxpayer money on business-class flights, including $13,000 for a trip to Sydney—eight times the cost of a coach ticket.
In any case, the dysfunctionality between MTC and ABAG involves more than cost-accounting and logistics.
For there was a third elephant in attendance, one to which Spering alluded, when he said that the two-agency arrangement was “what led us into the lawsuit we had with BIA”: the ideological conflict between the MTC and ABAG, soon to be evinced by the fight over the performance targets in PBA 2.0.
Other than Spering’s allusion, that conflict went unremarked at the June 24 meeting of MTC. It got plenty of attention at the July 16 meeting of the ABAG Executive Board.
Item 9 on the July 16 agenda was a memo from Pierce and Rapport entitled “Report on ABAG Budget Discussion at Metropolitan Transportation Commission Meeting on June 24, 2015.” It ran to 50 pages and included a 19-page transcript of the MTC commissioners’ discussion.
Pierce and Rapport said that what was currently under consideration was not a merger of the two agencies, but the transfer of ABAG’s Planning and Research department to MTC. If that shift occurs, they warned, “regional land use planning decisions related to Plan Bay Area will, accordingly, be removed from the ABAG Executive Board.”
That removal would not be simple. “Under State law”—including SB 375—
ABAG is responsible for regional land use and housing planning, and MTC is responsible for comprehensive regional transportation planning. To effectuate such a transfer, (1) the ABAG Executive Board would have to voluntarily cede land use responsibility to MTC; or (2) state statutes governing regional land use planning and transportation planning would have to be amended by the Legislature.
Pierce and Rapport recommended a different course of action: pursue “thoughtful conversation” about “how land use and transportation planning should take place in the Bay Area and how we can improve collaboration, efficiency and outcomes moving forward.”
That conversation is likely to take longer than six months and hence “should not be inhibited by a budget deadline.” Meanwhile, he said, a full year’s budget should be appropriated for ABAG; and a small committee of ABAG and MTC elected officials should discuss how to improve “work program, collaboration, structure, budget, or financial accounting.”
Pierce told the Executive Board that the small, ad hoc committee had been meeting for three months. But those meetings had nor forestalled MTC’s decision to fund ABAG for only the next six months—an action that the memo duly reported. And though the memo urged a full year’s appropriation, it did not suggest how that might be accomplished.
The memo explained that while state law designates the division of regional planning labor between MTC and ABAG, it does not require MTC to fund ABAG, “although in ABAG’s view, the commitment has been long-term and left to fair dealing between the parties.” Clearly, fair dealing had failed.
Moreover, Pierce and Rapport conceded that “Plan Bay Area 2013 had its share of interagency problems.”
But they also claimed collaboration between the two agencies had improved. Their staffs had gotten together and designed “a joint Plan Bay Area 2040 work program and schedule” for the upcoming SCS update. An attachment detailed the numerous tasks and named the teams from each agency that have been assigned to work on them.
Plan Bay Area aside, the memo noted many other examples of MTC-ABAG collaboration. The planning directors meet weekly.
Key decisions and board agendas are brought to monthly executive director meetings to ensure proper coordination. If and when both agencies disagree, both executive directors propose the framing of the issues for resolution at the joint meetings of the ABAG Administrative and MTC Planning Committees.
Not a word about the dispute over the performance targets for Plan Bay Area 2.0. True, the memo from Pierce and Rapport was dated July 2—two weeks before the joint committee meeting where that disagreement became public. But surely they were aware of the disagreement, which originated in the the two agencies’ differing responses to the BIA lawsuit.
Pierce and Rapport chose to put on a happy face: “ABAG,” they maintained, Pierce and “does not accept the premises that the two planning departments are in conflict or dysfunctional, or that the proposed transfer increases efficiency.”
At the same time, they tried to rally their troops: the memo’s final section surveyed the negative implications of transferring ABAG’s planning and research department to MTC, and argued that the change would complicate and indeed damage land use decisions, finances, and labor relations.
The labor issues are easy to grasp: The departmental transfer “would create substantial staff instability.” Plus, ABAG works with union labor (its employees are represented by SEIU Local 1021); MTC does not.
As for land use decisions: Pierce and Rapport contended that what’s at stake is the local voice in regional policy.
[C]ollaboration with local jurisdictions on land use issues, relies on close coordination with the ABAG Executive Board. ABAG planning staff works very closely with local planning staff and planning directors. In addition, the discussion and decisions at the ABAG Regional Planning Committee and Executive Board are essential to develop consensus among the diverse cities, towns and counties across the region. The engagement of the ABAG Delegates [to ABAG’s General Assembly, which includes representatives from every city and county in the Bay Area] has also been instrumental in implementing Plan Bay Area in particular.
The memo made a special appeal to its immediate audience:
Eliminating the Executive Board with respect to land use planning and the Regional Housing Needs Assessment (RHNA) process will seriously jeopardize the progress made to date regarding ABAG’s respect for local control of land use authority while advocating for regional objectives.
When I read the foregoing citations, I had to swallow hard: The claims about ABAG’s respect for local control of land use authority do not jibe with my decades-long observations of the agency. In my experience, ABAG’s solicitude for local officials does not extend to those officials’ constituents, who, as I recently reported, are mostly in the dark about actions taken at the MetroCenter.
But as I stated at the outset, the fight over displacement and affordable housing policy for Plan Bay Area 2.0 has made me realize that any hope for democratizing regional governance lies with ABAG, not MTC.
That realization was bolstered by the ABAG Executive Board’s spirited response to Pierce and Rapport’s memo.
“After reading it,” said Novato Mayor Pro Tem Pat Eklund, “I was really shocked….I do not support even exploring integrating ABAG under MTC.” Eklund emphasized the structural differences between the two agencies: “ABAG is a membership organization; every county and city has a vote….MTC has a lot of supervisors on their board, but not cities.”
In like manner, San Francisco Supervisor Eric Mar said, “It is a shock that [the proposed staff transfer] is moving forward….My hope is that before September meeting, we’ve worked this out, so that it’s not a power grab, like it really seems.”
“We were hammered in the last Plan Bay Area,” said Pacifica Councilmember Mary Ann Nihart,
“for not having enough electeds, for not being elected [to the ABAG Executive Board by the public], for not having enough transparency. How is it possible to think that fewer electeds making the decisions is a good answer? How is that even remotely in anyone’s head?”
Marin County Supervisor Damon Connollly agreed: “I also oppose the move to merge or consolidate.” Given “the concerns about regionalism” that came forward during Plan Bay Area 2013, such a move “would be perceived as a further erosion of local control.” It also seemed like “mission creep by MT, even going beyond their mandate.” He described the “six-month decision hanging over our heads” as “almost a blackmail situation.”
Newly elected San Jose Councilmember Raul Peralez noted that this was only his third meeting of the Executive Board. “I’m barely becoming an expert on issues in my own district in San Jose, let alone the region,” but “I’m not very comfortable with this,” which “seems like a bit of a power grab” that would “minimize the input from elected officials that we get at ABAG.” As for funding, “it should be plain and simply [for] a year,” while “we continue to discuss better collaboration and efficiency.”
The six-month funding agreement “does put an ax to our necks,” said Napa County Supervisor Mark Luce. Stating his regard for “the diversity of ABAG,” Luce said that in Plan Bay Area 2013, all the cities and counties “had a voice.” The process was “messy,” but “we got a great product that no other Council of Government in California has.”
The next speaker, Santa Clara County Cindy Chavez, said she wanted “to understand what sort of governance…creates opportunities for the broadest part of the community.” Chavez is not only a politician; she’s also a labor activist who’s worked for the South Bay AFL-CIO Labor Council and who formerly directed Working Partnerships USA.
Hayward Mayor Barbara Halliday echoed Eklund and then went even further. Avowing that “you’re not going to achieve the goals of [Plan Bay Area], if you do not have the population behind you,” Halliday asked: “If you’re going to have one agency take control, why is not ABAG?”
The idea of merger was supported by a few members of the Executive Board, including Alameda County Supervisor Scott Haggerty. At the June 24 meeting of MTC, Haggerty said he was voting against the six-month funding agreement, because it seemed like “bullying.” He also said he “[didn’t] have a problem looking at consolidating both agencies.” On July 16, he elaborated on that position. He noted that the two-agency regional planning arrangement is “an anomaly in California.” But Haggerty’s main point is that conslidation would “save taxpayers money.
But would it?
Luce questioned the efficiency argument. ABAG’s planning and research staff, he said, has
“a budget of a little over $4 million a year. The idea that [consolidation] is going to have some huge efficiency is silly. There’s not enough money on the table; nobody’s going to lose their job. MTC hands out hundreds of millions of dollars. That’s not what we do. The idea that we would lose our voice for a few dollars makes no sense.”
I agree.
Unfortunately, the ABAG Executive Board took did nothing to allay fears about losing that voice. The budget discussion appeared on the agenda as an information item, precluding any action on the matter. That was a tactical mistake, given the gravity of the situation.
In fact, by the end of the meeting, the threat to ABAG’s integrity and independence actually got worse, as MTC Chair Dave Cortese presented a memo dated July 16 that he had sent to MTC.
The gist of Cortese’s missive was that Pierce and Rapport’s July 2 memo to the ABAG Executive Board broke good faith with the work of the ad hoc committee. “During the last ad hoc meeting in June,” Cortese wrote,
the group agreed to direct Ezra Rapport and Steve Heminger to provide a joint analysis of 1) How to improve planning integration without any structural consolidation of functions; and 2) How consolidation of planning functions under a single director or entity might be organized and how reporting to the MTC and ABAG would work under this kind of systemic change. We fully expected that this might result in continued disagreement as to how to proceed, nevertheless we were all in agreement that the comparison needs to be done. This analysis was intended to be conjunctive, not either/or.
In light of the Pierce/Rapport memo, Cortese said he was abandoning the the ad hoc group. Their memo, he wrote, “seems to advocate delay and continued dialogue uninformed by formal analysis.” It “also appears to signal that ABAG’s leadership is only interested in the status quo” with respect to
structuring a more coherent and efficient planning process for Plan Bay Area 2040. Ironically the next step for our ad group was supposed to have been a comparison of the planning integration analysis once received from the two directors.
Now that ABAG essentially has laid out the case for non-structural solutions, I have requested that MTC’s executive director outline how a consolidated planning department might better serve both the MTC commission and ABAG executive board. He should continue to invite input from ABAG and emphasize our desire to collaborate.
In this way we will have both organizational possibilities and arguments before us to evaluate, not one without the other.
Cortese listed the options he asked Heminger to consider:
- A single planning departament of MTC and ABAG consolidated within the MTC organization
- An organizational chart that would have the MTC planning director oversee the consolidated planning department while continuing to report to MTC’s executive director
- A funding relationship between ABAG and MTC that would have MTC retain the bulk of the $4 million in federal and state planning funds that it currently transfers annually to ABAG to be used to pay for the cost of the larger scaled single planning staff and functions.
- A retention policy that would require MTC to offer employment opportunities to ABAG planning staff at commensurate salaries and benefits.
- A reporting and approval structure to elected policy makers that would continue to require the work product of the consolidated planning department to be approved by the joint MTC Planning/ABAG Administrative committees and, as per past pracctice or legal requirement, by the MTC commission and ABAG executive board.
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The existing statutory authority of the MTC commission and ABAG executive board would be respected and maintained.
Cortese concluded by saying that he intended to place the discussion of a single planning department on the MTC’s September 23 agenda.
How should ABAG respond?
Forget the ad hoc group; it’s history—and its bad history. What was really shocking to me, is that that group had been meeting for three months, and yet the Executive Board had no idea that it existed, or, more to the point, that MTC was preparing to cut off the funding for ABAG’s planning and research staff, much less that the transportation agency was contemplating a merger of the two agencies. Instead of secretly forming the small committee, Pierce and Rapport should have gone to their board three months ago, briefed them about MTC’s proposals, and asked for direction. For all the talk about ABAG’s democratic values, it appears that the organization run with a heavy executive hand.
Now, however, is the moment for the board to walk that democratic talk and mobilize support among the cities and counties in the region. The only suggestions along that line that emerged at the July 16 meeting came from Eklund, and they were good ones:
Convene the ABAG Delegates in your county, let them know what’s going on, and ask them to act in support of ABAG.
Bring the ABAG/MTC relationship to ABAG’s General Assembly.
Start working with the state legislature to get ABAG funded directly by the state. “That’s the only way that ABAG’s not going to be held hostage” by MTC.
She’s right. As Spering told me last week, “If the commission [MTC] decides not to give ABAG the funds, there’s nothing that ABAG can do.”
Time for separate bank accounts.
