Minutes of May 19, 2011 Commission Meeting
1. Call to Order. The meeting was called to order by Chair Randolph at the MetroCenter Auditorium, 101 Eighth Street, Oakland, California at 1:07 p.m.
2. Roll Call. Present were: Chair Randolph, Vice Chair Halsted, Commissioners Adams, Addiego, Apodaca, Baird, Bates, Chan (represented by Alternate Gilmore), Gibbs, Gioia, Goldzband, Groom, McGrath, Nelson, Sartipi, Spering (represented by Alternate Vasquez), Wagenknecht, and Ziegler (represented by Alternate Brush). Legislative member William C. Taylor was also present.
Not Present were: Sonoma County (Brown), San Francisco County (Chiu), Department of Finance (Finn), State Lands Commission (Fossum), U.S. Army Corps. of Engineers (Hicks), Governor Appointee’s (Jordan Hallian & Moy), Association of Bay Area Governments (Lundstrom), and Santa Clara County (Shirakawa).
3. Public Comment Period. Chair Randolph called for public comment on subjects that were not on the agenda. Comments would be restricted to three minutes per speaker. No public comment was made.
4. Approval of Minutes of the May 5, 2011 Meeting. Chair Randolph entertained a motion and a second to adopt the minutes of May 5, 2011.
MOTION: Commissioner Wagenknecht moved, seconded by Commissioner Adams, to approve the May 5, 2011 Minutes. The motion carried by voice vote with Commissioners Gibbs, Gilmore, Halsted and Goldzband abstaining.
5. Report of the Chair. Chair Randolph reported on the following:
a. Next BCDC meeting. Our next meeting is going to be held on June 2nd. We're going to be at the Ferry Building in San Francisco and we're going to take up the following matters.
(1) If the workshop we're holding today is productive but we don't have time to finish everything that's outstanding, we may continue the workshop on June 2nd. We'll hold a public hearing and vote on whether to initiate the process of considering amendments to the San Francisco Waterfront Special Area Plan to accommodate the America's Cup.
(2) We will hold a public hearing on proposed amendments to the San Francisco Bay Plan and the Suisun Marsh Protection Plan to revise a priority use designation in the Collinsville area of Solano County.
(3) We will receive briefings on restoration projects, wayfinding improvements and climate change and social media communications and we'll consider a status report on our progress in carrying out our strategic plan.
That completes my very short report. In case anybody on the Commission has inadvertently forgotten to report any written or oral ex-parte communications, I would invite you to let us know now.
Commissioner Adams mentioned she received an email from the North Bay Council about an item we're going to be addressing today.
Chair Randolph then moved on to the Report of the Executive Director.
6. Report of the Executive Director. Executive Director Travis reported:
On Monday Governor Brown released his May revise of his proposed state budget for the 2011-2012 fiscal year. Among other things, the revised budget calls for the elimination of an additional 5,500 state jobs and elimination of 43 boards and commissions.
Now fortunately, BCDC is not one of the commissions proposed for elimination and no additional positions at BCDC would be cut. Therefore, if the Governor's budget is approved our budget next year will be essentially the same as it is this year.
However, we lost two staff positions in an earlier across-the-board reduction sweep. The unpaid furlough program effectively eliminates two other staff positions.
A hiring freeze prevents us from filling vacant positions. A travel freeze keeps our staff close to home. We don't have any money for training. And we got rid of half our cell phones. But in these tough budgetary times our situation calls as good news.
We have two new interns in our planning unit. They are unpaid interns, highly qualified, unpaid interns as you will hear.
Jacob Bintliff received a Master of Arts in Latin American Studies from the University of Texas at Austin and is working on Master of City Planning at the University of California, Berkeley. He has worked on transit, waste management and sustainability issues in both Texas and Ecuador.
Luke Sires earned a Master's Degree in Sustainable Design from the School of Architecture and Community and Regional Planning also at the University of Texas at Austin in 2009. Since graduation he has worked as a designer, draftsman, carpenter and has conducted research on water infrastructure.
We welcome both of them to our staff.
7. Consideration of Administrative Matters. Executive Director Travis stated: On May 6th we sent you a listing of administrative matters. Included in the report is a detailed description of a project at Aramburu Island which is located in Richardson Bay near Strawberry Point in an unincorporated area of Marin County.
As explained in the report, the proposed project would result in fill being placed over 2.17 acres of the Bay, an area larger than the staff typically approves administratively.
However, 75 percent of the fill there, which is about 1.62 acres, would be covered with six inches of sand. And the rest of the fill there, it would be only a few feet thick. As a result, less than a third of an acre of the Bay's surface would be lost.
Now the purposes of this project are to stabilize the shoreline of the island, reduce erosion and provide sandy beach and intertidal habitat; to create a diversity of wetland, transitional and upland habitats and provide a platform for natural ecosystem adaptation to sea level rise by allowing for gradual transitions between habitat types.
Because the fill would improve the substrate of the shoreline and advance habitat restoration and habitat enhancement our staff believes it's appropriate to process this application administratively.
Bob Batha is available if you have any questions about this matter and that does conclude my report. Thank you.
8. Workshop on Climate Change Amendment Language. Chair Randolph reported the following: Item 8 is, in fact, the only item on our agenda today. It is a workshop on the latest draft language for amending the Bay Plan to address climate change.
And, I should probably explain at the onset the public process we've gone through up to this point.
Over quite a number of months now, at our staff's suggestion, several members of the Commission have joined the staff in four meetings where we discussed possible climate change amendments.
Two have been held with the environmental community and two with representatives of business and economic development communities.
And I think those meetings have been very, very helpful in getting a better understanding of everybody's perspective and also addressing any possible misunderstandings or misinterpretations of the language that has been put forward up to that point.
And we're very appreciative of the time and the great amount of effort that representatives of both communities have put into those meetings.
Over the course of those meetings I think it's fair to say that we've continually improved and refined the language.
I think, also, it's fair to say that the language isn't there yet. I would emphasize very much that what we're looking at today is a draft.
It's going to continue to evolve and I think it's been a little bit more complicated than otherwise a drafting exercise might be because we met with the environmental community and the business community and going back and forth.
Each meeting has produced some revisions and refinement to language and in itself at each meeting then you would have a draft that continued to evolve with each meeting, with each group; hopefully working toward a common ground that everybody could support.
But clearly we're not at that point yet. And one of the purposes of our meeting, our workshop here today, is to allow representatives of both of those communities to interact directly with the full Commission.
Again, several Commissioners have been very involved in detailed discussions with representatives of the two groups on the language.
I think now this is the right time to let you interact directly with them on where they're coming from on the latest draft language and question them about that.
So we have three representatives each today from the business, economic development community and from the environmental community.
From the environmental community we have Sarah Newkirk of The Nature Conservancy, Arthur Feinstein from the Sierra Club and Citizens Committee to Complete the Refuge and David Lewis of Save the Bay.
And from the business community we have Jim Wunderman from the Bay Area Council, Paul Campos from the Building Industry Association of the Bay Area and Zack Wasserman from the law firm of Wendel, Rosen, Black and Dean.
I want to welcome all of them and thank them for the time they're taking to join us for this important discussion.
In addition to those six guests, we've invited a seventh person to join us today. That is Gabriel Metcalfe, the President of SPUR, the San Francisco Planning and Urban Research Association which recently completed its own report on climate adaptation strategies for the San Francisco Bay area entitled, Climate Change Hits Home and I think we all have copies of that report.
So it seems very timely and appropriate to invite Gabe and SPUR to be part of this conversation today.
The goal of today's workshop, again, is to let the Commissioners interact directly with these key stakeholders.
And then, again, I would emphasize that the development of the language is an iterative process. It's a draft and I think from a personal standpoint where we are trying to get to, I think, is to have a Bay Plan, final language in a Bay Plan that is good policy.
That advances the agenda which I think most of us share of sound planning for adaptation to climate change.
And it's also language that has been developed in a way that when we're through with this process as we will be in September that there is close to a consensus as possible across the (inaudible) including environmental community members, business and economic development and others including our cities about the strategy and the direction going forward.
So, we are hoping that by this progress we will end up at more-or-less the same place supporting a new direction at the end of the day.
So, we will go to about 3:30 or as long as the Commission wants to go. We have a lot of people from the public to speak and the Commission wants to allow sufficient time to allow as many of those to speak as possible if we need to because we are going to get kicked out of here at 5:00.
We may need to ask members of the public to speak for three minutes, two minutes instead of three. But we'll see whether that's necessary or not.
We want to hear from everybody and we'd also encourage speakers to supply their comments in writing if they can.
Commissioner Gioia stated: As one of the Commissioners that has been part of this sort of subset that has met with both the business community and the environmental community I think they've been productive, they've been useful.
But I just wanted to make one comment. I think, so that there's not an expectation that either side is sort of drafting this Bay Plan. This is about providing input for our staff to go back and the Commission works through the final draft and it improves it.
But I think sometimes there's a sense that when folks submit some language that there's ownership over that language.
From whatever side, that if it's changed that ownership is lost but ultimately it's a public agency. Our staff is really responsible for taking this input and making, coming up with the policy that we think makes the most good public sense here.
Chair Randolph added: That's a good point and I think it is worth re-emphasizing that, hopefully, people could pick that up from my earlier remarks about the draft evolving with each exchange we've gone through and that in the end the language will be the Commission's language.
It will be the language that the Commission develops and it will, to the extent possible, attempt to find a balanced response from all the input we received and which will be a better document.
And we're looking toward having that draft developed and available by the end of July. So there will be a lot of discussions with key Commissioners and the staff and with any Commissioners that would like to be in that discussion before the end of July about the language that will be submitted, the new formal staff revisions.
We'll have a public hearing in September. So we still have quite a bit of process after this.
Commissioner McGrath commented: I also attended every one of the meetings. And I'm more than surprised to arrive here with a kerfuffle over language that was discussed, particularly, language on how to adopt and adapt the climate adaptation language which was discussed in some substantial level of detail with both parties.
And I particularly like to call attention to an approach that isn't helpful which is the one that I see from Scott Zengel. And I'll just read you the section that I think is not helpful because it goes to hyperbole.
It says, there is a specific new inclusion of a verbiage, critical habitat, this term by itself contends millions of acres of the Bay area including the Bay and the shoreline and does not allow a case-by-case analysis.
That's really not helpful. The original language talked about the possibility of preserving land or mitigation.
And then you look at the language that says, some areas, not millions of acres, but, some areas that currently have sustained critical habitats and currently are especially suitable; this only applies in our shoreline band.
Our shoreline band is not millions of acres and there are qualifications. So language that re-introduces that level of hyperbole to language that's been discussed is really not helpful.
I would like a little better focus from the panel when we get to the actual concerns. Thank you.
Chair Randolph announced that Chief Planner Joe LaClair would summarize the staff’s language.
Chief Planner LaClair made the following presentation: The staff report we've provided you has two parts.
The first part lists four findings and three policies we believe should be the focus of the conversation today.
The second part lists all 44 findings and 22 policies located in five different sections of the Bay Plan that we recommend be revised, added or eliminated to address climate change.
Of these 66 changes, 59 seem to be relatively non-controversial which is why we recommend that you focus your discussion today on seven key changes listed in the first part of the staff report.
We recognize that Commissioners and some stakeholders may want to see specific revisions in some of these 59 other provisions. We welcome these suggestions and will give them full consideration as we have done with all the comments we've received thus far.
But we suggest that you discuss any specific language change proposals for these 59 provisions after you have dealt with the 7 key public policy issues.
Turning to those key policy issues, let me describe them in detail.
Proposed climate change finding P on page three of the staff report deals with infill development. It explains why infill is a valuable tool in our regional strategy for reducing greenhouse gas emissions, links the Bay Plan with a sustainable community strategy being developed by MTC and ABAG and acknowledges that some locations suitable for infill may also be vulnerable to flooding.
We've wrestled with the definition of infill development. During our deliberations we've considered definitions that the business community found too limiting, definitions that the environmental community found too all-encompassing, definitions used in CEQA law and even considered not defining the term at all so that the Commission could make a case-by-case determination as to whether a particular development in a particular location is or is not infill.
In the end we've settled on a relatively simple definition which will require some interpretation on a case-by-case basis.
Proposed climate change findings W, X and Y on pages four through six in the staff report summarize the key objectives of and principal policy recommendations in the California Climate Adaptation Strategy.
Our staff participated in the formulation of the state strategy which was developed pursuant to Executive Order issued by former Governor Schwarzenegger in 2009.
Until recently, we had two reasons for believing it would not be appropriate to reference the state strategy in the Bay Plan.
First, Governor Schwarzenegger announced the completion of the state strategy in late 2009 but he did not issue an executive order to implement it, therefore, it was not adopted in any formal manner.
Second, during the 2010 gubernatorial campaign, Meg Whitman took a strong position against measures to address climate change, therefore, there was some likelihood that if she were elected the State Adaptation Strategy would be rescinded or ignored.
However, she was not elected and the Brown Administration is working actively on many fronts to deal with climate change.
Also, a few months ago the Ocean Protection Council which is chaired by National Resources Secretary John Laird and includes Lieutenant Governor Gavin Newsom, Cal/EPA Secretary Linda Adams and Senator Fran Pavley, among others, unanimously endorsed the guiding principles in California Climate Adaptation Strategy.
Therefore, we believe that it is useful to have this state policy guidance in the findings of the Bay Plan both to put the Commission's document in the context of statewide policy objectives and as a benchmark for the proposed Bay Plan policies which our staff believes is fully consistent with the State Adaptation Strategy.
Proposed Climate Change Policy #1 on page seven of the staff report has been created to respond to the misinformation, concerns and confusion regarding the consequences, intended or otherwise, of the application of the Bay Plan well inland of the Commission's jurisdiction.
Late last year some critics contended the maps that we had published in early 2009 to depict the areas around the Bay that would be vulnerable to future flooding, if not protected were intended to depict the area over which BCDC intended to exercise permit authority and usurp local autonomy. This was not true but many believed it.
Some contended that by offering policy advice to local governments for dealing with low-lying areas the Commission could make it even more difficult for local governments to approve infill development.
Some suggested that NIMBYs could use the Commission's policies and the threat of lawsuits under CEQA to force developers to prepare costly EIRs on all projects in low-lying areas which would make some infill projects financially infeasible.
Some have contended the Commission can use its authority under the Federal Coastal Zone Management Act to apply the Bay Plan policies to projects and activities throughout areas vulnerable to possible flooding in the future.
Whatever the motivation or merits of these arguments, they have gained a political foothold and must be addressed.
The staff recommends that the best way to accomplish this is to state explicitly and definitively that the Commission will use the climate change findings and policies only within its current jurisdiction and the findings and policies cannot be used by others outside this area.
Proposed Climate Change Policy #1 was drafted in consultation with the business community and the Attorney General's staff.
We believe that it does not substantively inhibit the Commission from carrying out its responsibilities to protect and manage Bay resources.
At the same time, we believe it will go far toward calming the political opposition to amending the Bay Plan to deal with climate change.
The side benefit of Proposed Policy #1 is that it makes it easier to develop other climate change policies that are definitive and less controversial because the policies will be applicable only in the Bay, certain waterways, salt ponds, managed wetlands and to the degree the policies affect priority uses and public access, the hundred foot shoreline band.
The existing provisions of state law and the existing Bay Plan policies dealing with the Bay, waterways, salt ponds and managed wetlands call for the environmental protection and enhancement within these areas rather than general development of most any kind, therefore, firm policies that limit development in these areas are both appropriate and legally necessary. For the most part, it is local government rather than the Commission that has the authority to determine what particular type of development should be allowed within the shoreline band.
There are two particular proposed climate change policies that are interrelated and illustrate the benefits of Proposed Policy #1. These two policies are number four on page eight and number seven on pages nine and ten.
Proposed Climate Change Policy 4 deals with undeveloped areas that are vulnerable to flooding and suitable for habitat protection or enhancement.
Although the business community would prefer for the Commission to be able to weigh protection in such areas with development that has regional benefits, we believe both the state adaptation strategy and the existing provisions of state law and the Bay Plan make it more appropriate for the Commission to discourage development in these areas.
Let me be clear, development would not be prohibited, it would be discouraged.
And the policy would not apply in low-lying areas inland of BCDC's jurisdiction. There, local governments will continue to make their own decisions as to whether development can be approved.
Proposed Climate Change Policy #7 prescribes the criteria that will be used to evaluate proposed projects in low-lying areas that are either within existing developed areas or do not have critical habitat value.
These specific types of projects are identified as eligible for approval because they would have regional benefits and advance regional goals.
Five other types of projects can also be approved because they are unlikely to negatively impact the Bay or increase risks to public safety.
Other projects could also be approved if they meet the threshold criteria as determined by the Commission on a case-by-case basis.
Drafting all the climate change policies the staff has endeavored to neither pre-approve nor pre-deny any particular project at the policy level.
Instead, we have used the approach that has been employed in the Bay Plan for nearly half a century; develop sound policies and allow the Commission to determine which particular policies apply to which particular site on a case-by-case basis using the specific nature and location of the site and the proposed details of each project.
I hope this background information will be helpful to you in your deliberations today and I thank you for your attention.
Chair Randolph added: Before we ask our panelists to come up let me call on Commissioner Geoff Gibbs and on any other Commissioners who have been involved in meetings with the business and environmental groups to give us remarks setting the stage for our exchange.
Commissioner Gibbs commented: We have to acknowledge the extraordinary effort on the part of our staff in bringing us through these several months.
Second, to the advocacy groups that have appeared before us we thank you for your contributions and your testimony. I know that it's been up and down at times but we have listened to you. We have heard you. And ultimately, your expertise will be reflected in the plan that goes forward.
I want to say, happy birthday, to my son Julian who turned four last week.
The nature and purpose of our effort was to have intensive and detailed discussions with subject matter experts and policy advocates to ultimately provide language and proposals for consideration by the broader Commission and the public.
It was by nature an imperfect process but one that was always intended to wind up here where all sides, the full Commission and the public could have the opportunity to comment and interact and ask and answer questions and to comment on the Bay Plan Amendments in a public forum.
We deliberately chose to put forward the State Climate Adaptation Strategy language because we thought it was the best framework to deal with the two major policy questions before us.
Those questions are, what should we do with undeveloped land and, two, what should we do with developed land or land which is a good candidate for infill development?
In plain English and in broad layperson terms, the working group speaking on behalf of the full Commission has been consistent with what we believe the Commission's tentative answers to those questions are.
First, for undeveloped land that sustains important habitat or can be the site of important ecosystem restoration, the priority use, the preferred use should be preservation or restoration.
Second, for projects that may have important region-wide benefits, they should be evaluated on a case-by-case basis and if the benefits outweigh the danger from sea level rise it should in most cases be approved.
Those have been the working positions that we've been working through with the groups.
So the policy provisions that we have put forward are not terribly complicated to express. The challenge is to translate those positions into regulatory language that can serve as a meaningful guide to not only this Commission but future Commissions as well.
That will involve a detailed debate about words and language, nuance and emphasis et cetera. We expect and welcome that debate but hope that members of the Commission will remember the straightforward policy positions underlying that debate.
Let me conclude by saying that this is a vital policy issue, a global issue but we believe there's no better place, no better staff and no better Commission to deal with it as this Commission and this region.
We've worked on this almost three years now. Some have an interest in not seeing us pass a climate change strategy and keeping the status quo.
Others have an interest in seeing us pass their climate change policies. But ultimately, and I'm speaking on behalf of the Chair and the Executive Director and, I believe, the working group; ultimately it's up to the Commission to develop a policy that makes the Bay Area a more livable place in years to come and is true to both of the ideals in our name conservation and development.
So, thank you Mr. Chair.
Chair Randolph added: I think that is a good representation of the spirit in which the language has been developed.
Commissioner Baird added: I'd just like to make one comment for setting things in perspective. The Secretary for Natural Resources Laird is very pleased you have looked at the Climate Adaptation Strategy and have considered it in your workings here.
He provided you with a resolution from the Ocean Protection Council on Sea Level Rise which builds on this Climate Adaptation Strategy and the climate and ocean action team's sea level guidance document which was put together with the assistance of 16 state agencies including BCDC.
And the idea is that this is to provide guidance, guidance to boards and departments and commissions on things, if nothing else, in everything you do consider the risks of sea level rise and continue collaboration and come up with the best approaches and carefully invest funds to incentivize ways to reduce risk and they follow the science-based recommendations that have emerged from extensive prophecies.
Everything that I've mentioned here has been subject to extensive public comment and public processes, workshops and opportunities to comment.
We believe the guidance provided in this document makes sense. They're science-based and we advise you to closely consider and follow that advice.
One size doesn't always fit all and that's why when the Secretary was asked, well, gee, is everything we're doing here at BCDC 100 percent conform with this policy?
Well, that's for the Commission and 26 people to decide, quite frankly. But we're putting forth some science and some real considerations that have emerged and through extensive public processes that we held.
So, we're very, very pleased that you're taking it seriously. And I sort of make that statement prior to the panel because I feel it's important to understand that comment.
Chair Randolph welcomed the panelists: First of all, I'd like to welcome everybody. We greatly appreciate your investment of time and effort and professional thoughts in this process.
What I suggest we do is we will start with our representatives from the business community, maybe starting with Jim Wunderman and any other colleagues of his, Paul Campos and Zack Wasserman can follow that.
And afterwards we'll have Sarah Newkirk from The Nature Conservancy speak and then David Lewis or Arthur Feinstein follow her.
So, Jim Wunderman.
Mr. Wunderman presented the following: Thank you Mr. Chairman, Mr. Travis and Madame Vice-Chair. It's good to see you.
So I'm proud to be the CEO of the Bay Area Council which is a group that represents businesses throughout the entire Bay area region. We have members all over the Bay area, all around the Bay area.
And we've been part of a coalition that is represented here at the table and throughout the room that's been working on this for quite some time.
And I appreciate the comments of Mr. Gibbs and others with regard to the work that the BCDC team has put into this because it's been a lot of work over the last bunch of months.
And I think you framed it correctly that there are some theories out there which, I think, all of us generally agree with and the challenge that we have is putting them into language because we live in a complex society with laws and regulations and interpretations and so forth. And these kinds of things can have a very, very big impact on the thing that we're certainly most concerned about, which is the functioning of the Bay area economy in these rather turbulent times.
We live in a region that's subject to various cyclical economic pressures. Our state as well as our region have very high unemployment rates. There's an increasing wealth divide that's going on.
And so even when things look a little better for a lot of people, there's an awful more lot of people who are getting hurt and their chances of succeeding in a more complex, more demanding economy are getting less.
And in many ways as a region, due to the nature of our businesses that we have there's less and less opportunities, it seems, for people who aren't trained to do certain things and it provides a challenge.
And it's one that I think we all, whether we're in the business or in government, we all join together to try to address. And it's in that spirit that we've been involved with that.
It's that while we consider the impacts of sea level rise on our region at the same time that we consider the economic impacts of what we do.
And this doesn't just apply to sea level rise or the work that the team at BCDC is doing, it's everything that we do. This is what we can bring to the table; our thoughts about how the way that government decisions are made at all levels, local, state, regional, federal, on the way the Bay area as a unique place with unique characteristics, assets, challenges and so forth can function well.
And we have to look to the future; happy birthday to your kid. Like my kids will he or she have a job when they go to school? Maybe they'd be able to go to a university and afford to pay for it and then have a fairly high career.
We come from such a treasured place that a lot of this was taken for granted until very recently. But we should we think you should take nothing, we should take nothing for granted anymore.
Our state is fiscally busted. Our economy is strained. We're competing against other regions of the country.
Just more on the Bay Area Council so you can understand who you're who you're working with here. This is the business association that supported, not was neutral on, but supported, AB 32; was at the table with Governor Schwarzenegger and Speaker Nuñez.
This is the same group that worked with Senator Darrell Steinberg on SB 375, a design to address reductions of greenhouse gases in terms of, by virtue of improving urban planning and transportation planning and actually reducing vehicle miles travelled. This is another historic bill and I was very proud to be on the stage with Governor Schwarzenegger and Senator Steinberg and some other folks in this room when the bill was actually signed and put into law.
And so, there's nothing that's happening here that has anything to do with a group like ours or, I think, any of the other members of the economic community in the Bay area being against things environmental in the region or that.
And certainly, certainly when it comes to climate change and sea level rise our organization has a vibrant committee that works on that subject.
We're not out to harm the environment of the Bay area or to deny what's happening that's bigger than us in terms of the things that we need to do to save our planet.
I thought it was a really good thing that Will Travis stood up and said, let's do something as an organization about sea level rise. Let's just not stand by and be a spectator
And I encouraged it. In fact, I was in the government myself in San Francisco for two administrations and I believe that it's government's responsibility. That's why the voters put you in the places that you're there and establish agencies to actually act and not ignore problems until harm happens.
And so I thought that that was the right thing to do. And I still think it's the right thing to do. And our group thinks it's the right thing to do.
So, for the last year or so we have been working, I think, very, very hard and very honestly and openly with the team from BCDC to try to come up with language that achieves the goals that, I think, Mr. Gibbs laid out so well to achieve common ground so that we can address sea level rise, so that we can amend the Bay Plan, so that BCDC can be a true leadership agency in this field and that we're able to go forward together and have a, sort of, unanimity of purpose in our region.
It was said, nobody on this side owns the language. And we don't feel that we own anything. But we did come to an agreement with the staff, after much work, on May 6th and with the staff that was language that we, that we felt we could agree to.
And in that language was lots of stuff that different members of the group that we had didn't like. But it's a compromise.
And people would say, okay, well let's have that. We can live with that as long as we have that. And we felt we had that worked out.
And so, there was surprise and awe and shock that when this came out and it suddenly included all of these references to the California Strategy which while well intended, and I'm very familiar with it because I took part in it, was not intended to be an overriding guiding, heavy-handed document that should drive the BCDC strategy.
And it wasn't put forth in a way that was designed to hamper this is, this very, very special Commission's work with regard to San Francisco Bay.
It had a heck of a lot more to do about on the ocean side. It had a heck of a lot more to do about fire and other issues. And to suddenly take that and say, well, here's the state strategy and we should just meld underneath it.
I think it reduces BCDC in a way that was never intended when BCDC was formed those decades ago to deal with a very, very special case-by-case situations on the Bay.
But I believe that this Commission and your staff deal with it very, very well.
And so, I think it is something to think about as to whether or not you want to develop the policy that's so beholden to California policy that the Commission can no longer be effective or meaningful in carrying out its basic function.
And I'd like to ask the Commissioners to think about that. This was something that was mentioned up until May 6th I believe maybe one time.
And suddenly it appears over and over again in the language. And I think it's the primary concern that this group that comes before you today with that.
The second thing is, another major change that took place is we see the word “discouragement” more often and more forcefully several times in the document than we saw before.
Of course we should discourage development along the Bay where development ought not be; where it's obvious that we need not develop and where sea level rise makes it imprudent to consider development one way or the other.
But on the other hand, there's lots of places along the Bay where developments already occurred or the possibility of development is a consideration.
And it should be considered based on what the potential is for being able to -- is it the right project and is it a project which can be protected from flooding?
And take it on an even-keel basis. And I think that the document in this last iteration has been strengthened to the point where somebody reading this, rather it's a planner or an attorney or a member of the public, would determine that this is just not, it's very, very clear we should have a retreat strategy.
It's where we started and what we didn't think was right. If you look around the world at those other regions that compete with us or in our own country like New York, they just don't go this far.
We're not the only place in the world with our own country threatened by sea level rise or operating economies below sea level. And there are much more reasonable, appropriate ways to deal with this as New York, I think, has taken that step.
As we've seen, of course, in places like Rotterdam. China is proposing to build a 500 kilometer wall along the North China Sea or something to protect. I don't think anybody here suggests that we do anything like that.
But where it's possible to do so, where it's structurally appropriate and where the economy would demand it, where there's opportunity to actually have folks living and working and not commuting and so forth and have, if we're serious about infill, rather than just sort of pay homage to it and then go pass policies that are going to make it all the more difficult to do it; let's get serious about it.
And let's look at each project on a case-by-case basis and come into the hearing with a fair analysis that could be provided by staff and by the people in the community who might, may like or not like the project and the people purporting that project and so forth.
So, I think you get the gist of my comments. To sum up, we'd like to see an agreement on this that we could support with all the other folks in this room. That would be a good day for the Bay area.
With this as a special region we should be extremely concerned about sea level rise and about the opportunities to preserve those portions of the Bay that need that attention.
But let's keep the door open to, as in the name of the Commission, Bay Conservation and Development Commission to opportunities for development where it's appropriate to develop and where that development provides real places where people can live and work and employ the next generation.
Because it's going to make a difference. And I implore you to take this very, very seriously. I think it's very, very easy to sort of run away from it. Sea level, the climate change is a tough issue.
And sea level rise is a real, real threat. But we are pretty smart people. And I think as a region we can do better than this.
So I urge you to take a hard look at it. A lot of progress has been made. Again I commend the staff and the leadership of BCDC for the work that you've done.
I think we're in the eighth inning of this thing; let's take it home. Thank you very much for listening.
Mr. Wasserman added: I was and am part of the group of land use lawyers that were invited to participate in this working effort. And on my own and their behalf I want to echo what Jim has said and thank both staff and the Commission as a whole and particularly the Commissioners who have served as part of this working group.
We recognize that this is in many ways an extraordinary effort. I think it's justified. But we do appreciate that.
I'm here not representing a group. But I do want to say that our efforts and mine in particular because I'm general counsel for the East Bay Economic Development Alliance have reached out to solicit the input as we interacted with staff and the Commissioners.
Not only as a business community members of the coalition but also local government and particularly local economic development members, some of whom are here and will speak.
We are in an amazing time. And this whole process is an amazing effort in the regional context that with the sustainable community strategies, with the actions of the Air Board, we are moving forward in very important ways for regional cooperation.
And this is a part of it. It's also a difficult balance for you and for all of us in the sense that we want that regional cooperation. We want things to make sense together.
But at the same time, you as a Commission and your staff have the responsibility for fulfilling the purposes under the legislation that created you.
And that legislation does put a very significant burden on you to do this balance between conservation and development. And we appreciate the work you've done for years in that effort and that this goes towards that.
I want to comment very briefly on the shock and awe in reaction to this latest draft. And it is not because we thought that we owned the language.
We recognize that at the end of the day with all this input you're going to rely on your staff. And at the end of the day it's you, the Commissioners, who are going to decide the policy and the language.
Nonetheless, in a couple of ways we thought this move in a very different direction than we had thought there was agreement on, not ownership, not binding agreement but, nonetheless, it was a term.
And that's why you've heard some of the language that, I think, has upset some of you.
We do believe that this latest draft and the degree to which it cites and relies on the California Climate Adaptation Strategy goes too far, not because of the criticism of that strategy but, and we recognize that as was noted early on that strategy has gone through its own public discussion, it has not gone through the kind of rigorous evaluation that this Bay Area Plan Amendment has because it doesn't really have the level of regulation and rulemaking.
So, some reference to it may be fully appropriate but the degree to which it affects this sweeps the whole adaptation strategy into the Plan, we think is not appropriate and will cause you as well as the constituents that we speak for some very significant problems.
We think it can be worked out. Much of the language that's in there was in the previous draft. And the substance is okay but bringing this whole new plan, and I would point out, in comparison, when you talk about the work of ABAG and priority development areas you talk about the Commission reserving its approval of those areas as it balances on a case-by-case basis.
I might argue with that but for consistency sake I don't think you want to elevate the Climate Adaptation Strategy over that and then tie the Commission's hands.
So that's probably the biggest point. I echo the "discouragement," the concern over that single word and we know that the devil is often in the details. But we do think that that needs some more discussion, some more refinement because we think it will inhibit, again, your ability on a case-by-case basis.
And I'm going to end with this. I disagree with Jim a little bit. I don't think we're about to build a 500 kilometer sea wall along the ocean front for the Bay area.
But I do believe and I know that staff, your staff is exploring technological ways to address what will happen if, in fact, the prediction of a 55 inch sea rise by end of the century happens.
Because we will have to have some very significant technological ways to address that if we're going to protect existing development.
Stopping development will not do that. And I'm not suggesting that this is aimed at stopping. I'm simply saying, keep the case-by-case flexibility. Thank you.
Mr. Campos commented: Paul Campos with the Building Industry Association. A few quick remarks. I'd like to go directly to Commissioner Gibbs' opening description of what he described as his own as a Commissioner's goal and what he thinks the Commission's goal ought to be.
And that is broadly speaking that very important habitat areas, the priority use ought to be for preservation or enhancement, whereas, in other areas appropriate for development there should be a strong presumption that development occurs.
I agree with both of those premises but the language before you, the current staff language, I would argue on the point about "encouraging" preservation and restoration goes far beyond that as we've heard to "discourage" should "discourage". We know "should" means "shall" in the Bay Plan, so a very strong language.
And it does nothing on, the other hand, to the language with respect to creating any sort of presumption, let alone certainty, that a development project will be approved under any circumstances.
All this does, all the language before you does is establish a discreet set of categories of projects that, may, be approved if you then subject to an additional balancing test that's not very well defined.
So I would assert that there's a very large imbalance in the "discouraged" versus "encourage" part of the equation.
I'd also like to talk about this "critical habitat" issue and particularly what Commissioner McGrath raised. We had a very long discussion about this language on April 7th.
BCDC, the idea of critical habitat and that language came up. And I, frankly, am pretty disappointed Commissioner that you would take this opportunity and this bully pulpit to really bully someone who can't respond. I think that's really inappropriate.
And I will defend what Scott wrote because the fact is that the entire Bay is critical habitat for the Green Sturgeon, literally.
Huge amounts of tributaries are critical habitat in the Bay area. And with respect to millions of acres that is legitimate concern because I would acknowledge what Joe LaClair said about, attempting to resolve this extra territoriality issue and the Coastal Zone Management Act and whether or not BCDC, through that, can impose Bay Plan policies on projects far beyond the Bay.
Staff has done an outstanding job, in my opinion, of attempting to address that concern and has gone as far as it can.
But, I think staff's lawyers will tell you, it's not a guarantee that that is a valid approach. We're not sure that BCDC has the authority to say that parts of the Bay Plan cannot be used in consistency review.
So that makes the language, as I've always said over and over again, the language very important.
And there are millions of acres of critical habitat for the Red Legged Frog, the California Tiger Salamander, all potentially could be directly affected by this language.
So that's not hyperbole Commissioner. Those are facts. And I think that this is another bit of irritation here, there's been a lot of selective outrage over the last five or six months by certain Commissioners over certain groups saying hyperbolic things or not being helpful and I sat here last November and heard Mr. Lewis stand up and call everyone who disagreed with him a liar, literally.
Not one Commissioner said anything. Want to read the emails from Save the Bay. Want to talk about hyperbole. Now let's not have a double standard here. Thank you.
Ms. Newkirk commented: I represent The Nature Conservancy and I appreciate the opportunity to speak.
The Nature Conservancy has a very general interest in climate change and particularly in climate change adaptation.
We're interested in how communities and natural resources can co-exist in the face of a changing climate.
We're interested in seeing the state develop strong climate change adaptation policies and in how local government implements those and implement their own strong policies.
The Bay Plan Amendment is substantially significant beyond the Bay area and it is significant for all of California. And it needs to be strong.
There's the new NRC Report underscoring the urgency for action to the point that if we delay much longer, the cost difficulty adapting to climate change will be very high.
There's the SPUR Report. The report is tying the flooding in the Midwest to climate change.
The study by the Arctic Monitoring Assessment Program which confirmed, again, that polar ice is melting faster than we previously thought.
And the very important Vatican Report urging action on sea level rise. So in case you didn't need a stronger mandate, even God wants you to do a good Bay Plan Amendment (laughter).
So, sea level rise is a fact of life. BCDC is acting prudently consistent with state policy and within its legal jurisdiction and mandate.
There may be uncertainty about when and how much and how fast sea level rise is occurring but it's very hard to deny the current monitoring data demonstrating, not just projecting, that the sea is rising.
It's inexorable and irreversible within any meaningful timeframe.
BCDC as a land use planning and regulatory agency has often to confront emerging realities of life.
The population has grown in the Bay area. And it's to continue to grow.
There's been an overall increase in vehicle miles travelled.
Does BCDC need new law and new mandate every time an unforeseen reality emerges on the scene? Of course not.
As with other facts of life, addressing sea level rise is BCDC doing what any reasonable management agency needs to do. It's assessing the context in which it's facing its work and applying its legal mandate within that context.
And you should not hide from that responsibility and should not shy away from doing as strong a job as possible.
And we think you're headed in that direction.
I have three main points to raise as part of this panel. My first point, and I apologize for taking this a little bit in reverse order. But my first point with respect to objective b in the forthcoming regional strategy; and that's on page 39 of the policy.
And it proposes to make safeguarding Bay in some interpretations it could propose to make safeguarding Bay ecosystems through providing space for wetland migration subservient to the goal of economic prosperity.
And I assert that that misses the point and runs somewhat counter to the very reason for BCDC's existence.
The wetlands of our Bay are the very drivers of our economic prosperity. They are the thing that is behind what makes San Francisco and Oakland and the surrounding communities as prosperous as they are.
The science that supports this economic value of those habitats is getting stronger and stronger. Wetlands provide enormous economic and quantifiable assets including flood control, water quality enhancement, air quality enhancement in addition to providing habitat for plants and animals that we enviros care about.
The Bay Plan itself refers to these services as things that might be lost if any filling happens today not just indiscriminate filling.
Now when the Bay Plan was written sea level rise wasn't really something that we were thinking about; the main threat that it was confronting, that was confronting these ecosystems was filling.
But we now understand that this threat is the combination of filling and this inexorable rise of sea level and we need to respond. But we need to do so in ways that maintain our flexibility and avoid maladaptation.
If we don't provide space for wetland migration we will lose these assets just as surely as if we had indiscriminately filled the Bay 46 years ago rather than creating this Commission and the Bay Plan and you all doing the wonderful work that you've done.
Accordingly to The Nature Conservancy recommends removing the first clause of subsection b and replacing it with language to the effect of, in order to more fully advance public safety and economic prosperity we should enhance the Bay ecosystem by identifying areas in to which tidal wetlands and tidal flats can migrate landward.
My second point is that the policy pertaining to undeveloped, vulnerable shoreline areas is very much improved from the last draft that we saw and incorporates the Climate Adaptation Strategy and adopts its recommendation that development in these areas should be discouraged.
Unfortunately, the draft also features an unusual and broad definition of infill that threatens to really limit the application of this undeveloped areas policy. And the development community seems to be urging something that would be even broader.
Now as you know traditionally infill development refers to construction and new housing, workplaces et cetera within existing urban areas.
The development can be of several types, on vacant lots, re-use of under-utilized areas et cetera in contrast to these definitions which emphasize the use of existing urbanized areas and existing transit.
The proposed definition, to some extent and the definition that the development community is urging, focuses on building out from areas into areas where transit may be provided sometime in the future.
Beware of this. Because there is another word that emphasizes the growing out from urbanized areas into areas that are not urbanized and that word is, sprawl.
The Nature Conservancy strongly recommends that BCDC use the SB 375 definition of infill.
This has multiple benefits of not only being accurate and accurately characterizing the concept of infill but also ensuring consistency with state law and BCDC policy on infill.
My last point is that the land grab argument that's been in the press and that Mr. Travis referred to in his opening remarks has created substantial pressure on the Commission to show that it's not trying to expand its jurisdiction.
And Climate Change Policy #1 on page seven of your document circumscribes the use of the climate change findings and policies only to the areas described in the Government Code Section 66610 and Natural Resources Code Section 29101 and purports to prohibit the application of these policies to consistency review and CEQA determinations.
Like my co-panelist Mr. Campos I question whether that would be a legally responsible thing to do. I'm not capable of opining on whether it's consistent with the law or not.
What it is bad policy. The Bay Plan should contain good policy. And what's good policy for guiding the use of the Bay and shoreline is good policy for consistency review and CEQA as well. To the extent that those authorities have been granted to this Commission it should not hide from using them.
The California Climate Adaptation Strategy says that state agencies should generally not plan, develop or build any new, significant structures in a place where that structure will require a significant protection from sea level rise, storm surges and coastal erosion.
Consistent with the, this is consistent with the federal CZMA which gives you the consistency review authority which says that because global warming may result in a substantial sea level rise with serious adverse effects in the coastal zone, coastal states must anticipate and plan for such an occurrence.
Similarly, under CEQA guidelines all significant state projects including infrastructure projects must consider the potential impacts of locating development in areas susceptible to hazards including those resulting from climate change.
Accordingly, the proposed findings and policies in the proposed Bay Plan Amendment are entirely consistent with the federal CZMA and entirely consistent with CEQA guidelines and BCDC should eliminate new climate change finding, new climate change Policy #1 and apply, if indeed Mr. Travis is correct that this isn't a land grab, this is entirely within your existing authority, there's no need to artificially circumscribe that authority in the way that you've done or that, in the way that the proposal suggests.
I congratulate the staff on making significant improvements to the Bay Plan Amendment, Proposed Bay Plan Amendment that we've seen and I appreciate you giving the time to listen to us today. Thanks a lot.
Mr. Feinstein commented: And so just a few comments to what Mr. Wunderman was saying. And one of the questions he asked was, will our kids have a job?
I have a granddaughter who is eight years old. I care very much about her. And I wonder if she will even have a world, you know.
This sea level rise issue is quite serious. We're seeing what's happening to the world now as Sarah said, weather changes, five, six feet of a higher Bay.
I don't think any of us can actually visualize it. We can see the map. But what does that mean. You see tsunamis. That's a wave of water. Well, a rise of six feet is basically a wave of water.
We're going to have to spend an awful lot of money protecting our already developed areas. And I'm not sure where that money is coming from in our present financial situation. We're talking millions of dollars here and I think you all know that.
So in the future we really need to focus on the impact of this on our existing communities. How are we going to defend them and where that money is coming from, and, once we defend them, will there still be a natural world that provides and sustain those communities because we don't exist absent nature.
And Sarah raised that point that one of the most vital elements of the Bay in terms of its ecosystem functions are, and you have just had this out to your Commission in part to subtidal goals or subtidal habitats which are, can be fairly shallow, are inter-tidal habitats and are mud flats and wetlands.
The mudflats, inter-tidal habitat and wetlands are all threatened by sea level rise.
They may completely disappear under six feet. Wetlands have a very, very narrow existence in terms of our tidal range. It's not a foot is okay. No. A foot of water, you submerge your wetlands, half a foot of water and you submerge your mudflats so they no longer function.
So this is very serious if we're interested in having fish or having crustaceans and shellfish. If we're having the benefits that Sarah talked about that wetlands bring us and that are reflected in many of the documents that this Commission has looked at.
So if we don't protect our undeveloped areas now and allow for wetland creep and mudflat creep which is, I wish we had nicer terms, but that's what we use to talk about the moving inland of these very shallow water resources.
We are not going to have a Bay, we’ll have a bathtub. Basically we'll have deep water that will have some function but won't have nearly the vitality and the functions that our Bay provides today. You will not have Dungeness Crab.
So that's one of the reasons we're so concerned about where this is going. And I thought I'd read just a few sections of the McAteer-Petris Act because we're being told, well the Mac, the Act is for both conservation and development, it absolutely is.
But it's also quite clear that the Act was written with conservation in mind because the Bay was disappearing.
And so, findings. The threat of uncoordinated haphazard filling, the findings and declarations as to the threat.
While some individual fill projects may be necessary and desirable, piecemeal filling of the Bay may place serious restrictions on navigation and may destroy the irreplaceable feeding and breeding grounds of fish and wildlife in the Bay and may adversely affect the quality of Bay waters and even the quality of air.
And it goes on to say, the further filling of the Bay in certain waterways and subdivisions et cetera should be authorized only when public benefits from filling clearly exceed public detriment from the loss of water areas.
So, clearly this is saying, we have a valuable resource and I forgot to say, the Legislature finds and declares that San Francisco Bay is the most valuable single natural resource of the entire region.
There's no mistaking what the concern is of your agency. It's to preserve the most important and natural resource in this region. That's your mandate.
It's not economic development is actually in here. And you can fill the Bay when that benefit exceeds the impact to the natural, most important natural resource; but the priority is conserving that most important natural resource.
Sarah talked about page 39 but on 38, this is talking about developing a regional plan to address climate change. And the way it's written here under a, page 38, the goal is to advance regional public safety and economic prosperity to the maximum extent feasible.
Now that doesn't say, protect the Bay. We have a complete inversion of what the McAteer-Petris Act says. The McAteer-Petris Act says, economic development only when you are not impacting the Bay and it should be the minimum fill feasible or possible.
Now we're saying, maximum extent feasible for development while for conservation it's down there where it's not in the way, where it's okay.
So, that's the concern from our environmental community. I think I speak for many and you will hear from many others.
This inverts the whole purpose of the McAteer-Petris Act and I think, and this particular section staff has somewhat lost its way in terms of what the goal is in balancing conservation and development.
So we're asking you to just reverse those again.
Mr. Wunderman also said that the Bay Area Council worked on SB 375. SB 375 is replete in this document. It's mentioned quite frequently and it refers to it often.
And we agree with that. SB 375 was designed to address climate change, to reduce sprawl so we have the least amount of generation of greenhouse gases.
So why would you not adopt the definition of infill that's found in SB 375? Why create your own which is extraordinarily loose and, I'm not going to go on too much longer, but if I wanted to go on I could describe how that definition, it would be difficult as an environmentalist to come before this Commission or any planning body and argue that any project does not meet that definition it is so broad.
There's no way that I could ever say any project was not infill in the Bay area considering that every place in the Bay area is adjacent to somewhere to development.
So you have a terribly loose definition of infill as proposed. You have a state approved and adopted definition of infill in SB 375 which is actually referred to constantly in your document here should you choose to adopt the state legislative definition of infill.
And I think I'll probably stop there. I just want to say one more thing. I've already said it to you but I will say it again. BCDC has very limited jurisdiction, it's the water.
This is a guidance document for local communities that are thinking of developing on land. You don't have the ability to say, you can't build anywhere on land.
So, this is a guidance document. It's one that is in keeping with the California Climate Adaptation Strategy. It's an appropriate one with the amendments that we're suggesting to guide local communities where they should build and where they shouldn't so the future of my grandchild has a Bay that's functioning and that we protect the areas that are going to need protection because we've, at least, made reasonable attempts to concentrate what we're doing now so we can afford to build. Thank you.
Mr. Lewis made the following comments: So I'll be brief because I'm glad that we're back in a forum where the Commissioners are going to have a chance to interact with each other and have a dialogue on this.
There was a great dialogue at the end of last year and some stronger action to staff. And although it's taken awhile, I think the draft that's before you actually reflects a lot of what you asked for and is much closer.
And I appreciate the effort that Commissioner Gibbs and McGrath and others made to take the extra time to think through those issues in detail. But I'm glad we're back in a forum where all of you get to weigh in on this and chew on it.
I'm happy to be a representative on this panel for the environmental community but I would have been just as happy to be classified as a speaker on behalf of the Bay area's economy and quality of life because I certainly think that what we're after here and what we've been advocating and helping the Commission to accomplish over the last 50 years is the reason that the Bay area economy is as strong as it is.
And I've been thrilled to work with Jim Wunderman on many issues of Bay protection and restoration. The Bay Area Council has been a huge advocate and helped us make a lot of progress. And I know that will continue.
But I think especially over the last six months it might have been too easy for observers and maybe even Commissioners to view this whole issue of trying to craft these smart policies as somehow negotiation between environmental representatives and representatives of business or development.
And we all know why that's happened. Some people made it impossible not to conclude that that what's we're after here. But that's not what Save the Bay has ever advocated.
We've always advocated that the Commission finish and approve and adopt these policies. That they do it and you've heard me say this repeatedly over the last year based on the input from Commissioners.
Everybody should have a chance to provide public input and comment. There's been abundant opportunity to do that on the record and off the record.
But that's not what everyone has been seeking. I think Sarah's comments about the specific language and additional changes that you should ask the staff to make moving forward are precisely on point.
And I'll just underscore a couple of those.
Commissioner Baird said, the Climate Adaptation Strategy has a new role here. I do take issue, a little bit, with how Jim Wunderman characterized it because when the Climate Adaptation Strategy was being discussed there probably was no aspect that was more on the minds of people than the vulnerability of the Bay and Delta shoreline areas because such a huge percentage of the vulnerable property in the state is in those areas.
And that doesn't mean that they were adopting regulations for each agency. It was a strategy. But what you have done in incorporating that language is crucial. Not just for this Commission but for the whole effort statewide over the next several years to get state agencies, regulatory and otherwise, to implement the Climate Adaptation Strategy.
So whether you like it or not the stakes are even bigger than just for the Bay Area with what BCDC does. Because if you fail for some reason to do this, or if you do it in a way that is not strong policy, I think that gives great encouragement to interests all over the state to try to take apart that Climate Adaptation Strategy. And not just on issues of sea level rise but areas where fire encroachment is going to be a huge issue. So the stakes are very big.
Secondly, on jurisdiction. You already responded and Executive Director Travis was very articulate last summer in trying to rebut the misinformation, the scurrilous attacks on the Commission. the mischaracterization of what was going on, land grab, et cetera. And of course it has continued. That's why in addition to Sarah's point about why Policy 1 is not needed and not good policy and really won't change because you don't have the authority to change CEQA or the Coastal Zone Management Act.
It also won't help discourage that kind of mischaracterization. In fact I think it would just encourage that kind of mischief and replication of that effort to try to roll back BCDC's actual or perceived authority every time a future Bay Plan Amendment comes up.
I think I'll just stop right there and say that we encourage you to make those changes and we encourage you to finish this process as we have been for awhile. We think you are very much on the right path and with those changes you will have a very strong and defensible policy that will provide clear guidance, will protect the natural resources of the Bay and will enhance the economy of the Bay Area for the future.
Mr. Metcalfe commented: I'm Gabriel Metcalfe, Executive Director of SPUR.
And I guess I want to say I think we're getting close on this. In spite of some big issues still to work through we do agree on the fundamentals. This is not a business community that is denying climate change. And this is not an environmental community that is avoiding the imperative of infill development, not least because we need infill development as the key strategy in the Bay Area to fight greenhouse gas emissions.
So we are trying to do broadly the same things. We are trying to preserve the critical places for ecosystem restoration. We are trying to get more infill development to happen next to transit.
I think that when we identify the areas that are really important for infill and when we identify the areas that are really important for ecosystem restoration, what we are going to find is that first of all a lot of areas are not that important for either one.
And secondly, there's going to be a bunch of areas that are very clear infill locations and very clear ecosystem restoration areas.
There will only be a relatively small number of places that are potentially really good infill sites and also really good ecosystem restoration sites. That's where you are going to have to make the judgment call; that's why the case-by-case decision making is important. Those will come to you and you'll just have to weigh it.
But I think the key is getting a sufficiently narrow definition of "infill" and a sufficiently narrow definition of "ecosystem restoration opportunity." And so that's why the wordsmithing really matters. They have to be clear that some decisions come here that are clear; that not every single one ends up being an anguished dilemma.
And so I think, I think that's possible. We did put out a report last month called Climate Change Hits Home and you can download it at spur.org.
I may get called away in the middle of this session and if so SPUR's Sustainable Development Policy Director, Laura Tam, is going to be able to sub in for me. She is the person who staffed this report and knows more about this than me.
Chair Randolph added: Thanks very much, Gabe, and thanks to all of our panelists. I think you have laid out a very succinct set of ideas and options for the Commission.
I think I agree with Gabe that there is a lot of opportunity for common ground here. There are differences but differences that may be resolvable in the end.
So in that spirit let's open it up to questions, comments from members of the Commission. We may have a lot so I would suggest you ask to be recognized. If you have a follow-up question that is immediate, follow up and I'll make sure we get everybody that we can. Commissioner Gioia.
Commissioner Gioia added: I first had a brief comment and then I have a question. Because a couple of speakers made reference to the fact that we don't consider economic aspects as part of our decision and I really want to correct that.
There is a reason that we have a port priority designation for some land around the Bay. And that is because we recognize the importance of preserving land for port expansion, knowing the tremendous pressure that is faced to convert land vacant to ports to sometime other uses like housing. And when that happens, when there is a need for a port to expand, you're faced with no port capacity or having to fill the Bay to achieve additional port capacity.
That's a reason why this Commission, why actually the law allows the ability to have port priority designations, because of the recognition that ports are important to the economic activity of the San Francisco region. I wanted to really point that out because it's not really totally accurate to say that we don't consider economic factors here so I wanted to point that out.
And second, looking at the San Francisco waterfront. So fast forward now to the San Francisco waterfront and the good work of San Francisco with the Commission. This has become the most vibrant, economically successful tourist area along the waterfront of any waterfront really in the country. And that was because, I think, the good planning of BCDC working with the City of San Francisco. So I just want to mention those two points. Economic factors are something that we all look at here at the Commission.
I'm not sure whether it was Zack or Jim that talked about whether things should be more case-by-case. I ask you to expand on that more because I want to follow up with some thoughts in looking at development. You seem to sort of moving more towards case-by-case consideration as opposed to a stronger policy that helps you really evaluate things. Am I hearing you correctly?
Mr. Wasserman replied: No, I don't think so. Clearly the Bay Plan and the Bay Plan Amendment addressing climate change and rising sea level needs to have policies.
And we think it does. No question about that at all. We're not trying to go to the wild west where you decide everything on an ad hoc basis.
But we also think that in making the difficult balances about areas you need to look at what is actually before you in any particular permit application or requirement. Gabe is probably correct that the number of circumstances in which it is gray rather than relatively clear will be limited.
And at some level you could say it's a shame we are spending so much time, effort and words over things that will be limited. But it is on the margins where your decisions are difficult; where the struggle is difficult. We think that "discourage" as an example sort of cuts a broader, wider policy level where you really want to look at what is before you on a particular proposal, balancing the factors that are both in the legislation and in the plan.
Mr. Lewis added: Commissioner Gioia, as you well know, BCDC examines every permit on a case-by-case basis and sees how it fits with BCDC's policies.
But no project gets to BCDC until after it gets the local approval, which is based on a whole environmental analysis. So the value of articulating "encourage, discourage, resume" is to help give guidance to local jurisdictions and to developers and communities about the kinds of development or restoration projects they should be trying to do so that BCDC isn't flooded with a lot of inappropriate projects.
People still have the right and often do get local approvals for things that BCDC has a hard time approving, notwithstanding the staff and the Commission's effort to try to articulate that. The clearer these policies are and the more they comport with the state strategy guidelines the fewer permits will come to BCDC that shouldn't come in the first place.
Commissioner Gioia answered: that was part of why I raised the issue so we could have some discussion.
And just to say, I'm reflecting back on, if you think of when BCDC was first established, that ultimately there is strong policy that is in the law that is used to judge these permits by. And if you think about the success of San Francisco Bay and the reason we have the Bay and it has not been filled is because there were strong policies from the 1960s and '70s that allow us to look at issues on a case-by-case basis. But the strong policy is really what guided the review of those permit applications and why the Bay is protected as it is today so I tend to think we need some type of strong policy.
I'm getting this message from some that everything has to be more ad hoc, case-by-case and I don't see that being very successful in trying to achieve the objectives.
Mr. Campos interjected: Well I'd like to go back and actually follow-up on what Art endeavored to do and that's read from McAteer-Petris itself because just about all the policy language that he read was about fill. And no one is talking about fill here, we are talking about shoreline development policies. And here is what McAteer-Petris has to say:
"The Legislature finds that in order to make San Francisco Bay more accessible for the use and enjoyment of people the Bay shoreline should be improved, developed and preserved."
The Legislature further recognized that private investment in shoreline development should be vigorously encouraged. Let me read that again.
"Private investment in shoreline development should be vigorously encouraged and may be one of the principle means of achieving Bay shoreline development, minimizing the resort to taxpayer funds. Therefore, the Legislature declares that the Commission should encourage both public and private development of the shoreline."
I think our main point is that the language before you does not serve that balance in that particular finding dealing with shoreline development. Instead when we say we want a case-by-case approach, in our view that is actually that is not our ideal situation.
As one of the Commissioners I spoke with coined a new word, we think we are being “reasonabled” to death. There is no language in here that encourages development anywhere. All it says is, you must meet one of the specific criteria. And if you do we will then consider you for approval.
Whereas the discourage part of the language is very clear that if you meet one of these criteria, which are very broad, you shall be discouraged.
So what we are saying is, okay, we prefer to have a "yes, you shall be approved if you meet these criteria." That would be an equal balancing. We haven't even articulated that position and we are being punished, frankly, for coming at this and being reasonable and not asking for the whole loaf.
Commissioner Gioia added: Paul, with all due respect, you quoted from McAteer-Petris but you failed to reference all the other provisions that address the issue of development within the shoreline band. That's why there's not ten-foot high-rises within the shoreline band.
Mr. Campos replied: Yeah but, John, we just had a, we had a panelist who read about five different paragraphs about filling in the Bay. And I didn't hear you -- again, it's the selective sort of commentary.
Commissioner Gioia answered: And let me take that point to make I think a really important observation for us. Every single comment we get, we understand, which is why the staff is drafting the language. Everybody on all sides is going to choose language that makes their case.
In the public interest we are taking the input and having the staff draft the language. Because as all good lawyers and public policy folks know, any one sentence out of context, or a paragraph out of context -- and this is not saying anyone is taking anything out of context. But that --The McAteer-Petris Act, the Bay Plan and all the policies we have are read in context with each other. And so that's why it was frustrating to hear from some about this jurisdiction issue because read in the context of the total plan, we know what it means.
So that's why the staff is taking all this good input and trying to translate it into a meaningful plan as opposed to having people draft language which they take ownership of. Because as you say, anyone can read paragraphs and say, this is what the plan says. The staff know it better than anybody. Those that have been on the Commission here know that. And so we are trying to work with the good input to come up with something that really makes sense.
Mr. Campos replied: That's a fair point, John, and I appreciate you getting back to the higher level question and not in the weeds about what the Commission, how this decision is going to be made.
We happen to be a pretty progressive BIA nationally, whatever you think of that. But Bay Area Council is one of the most progressive business organizations in the country, often to my chagrin.
I would like you all to step back and say, doesn't it mean something? Isn't there something amiss? Is there not a red flag that the Bay Area Council, Zack Wasserman and the East Bay EDA, SAMCEDA, all these groups that represent business, labor, local governments, continue to have very strong problems with the language that the staff is addressing. Whereas the proponents, they may say, the environmentalists on the panel clearly would like this language changed to be stronger.
But I would submit that they would urge you to vote for it today and that is telling. I think you really need to think -- ask yourself why.
Mr. Feinstein commented: I just wanted to respond to that last comment about environmentalists would be happy to have this adopted today. Here is one who is not so let me just reject that right out.
We are providing comments because we think the way it's written right now it doesn't do what we've said. It inverts your charge of protecting the Bay into encouraging development over the Bay. And from the first paragraph the mission of BCDC that I read it was the reverse. It recognized the natural resources of the Bay, the most important in the region, and minimum fill necessary or no fill if possible. That was your charge. And now that we're talking about an expanded Bay that is still your charge.
And with the way it's written now, with the loose infill definition and that inversion of -- and I'll read it because he said that it doesn't encourage economics. Well again:
"The entities that formulate a regional strategy are encouraged to consider the following strategies and goals. Advance regional public safety and economic prosperity by protecting to the maximum extent feasible existing development."
"And new shoreline development that is consistent with Bay Plan policy."
So it is saying to the maximum extent feasible, new shoreline policy -- new shoreline development. We think you need to go back to your original language and say, development only when you are not affecting the natural resources. You can do it but you have to do that balance.
So I wanted to respond to those two. Those are very meaningful statements to us. We are not ready to accept. I personally am not ready to accept it as written right now.
Commissioner McGrath stated: When I came in today I thought there were three issues and I've listened I think pretty carefully to the “discourage” issue and I want to provide my opinion on that.
The three issues I thought we have and I think we still have is, should we broaden our definition of infill? Should we allow consideration of projects that might otherwise concentrate development ahead of the development of regional adaptation strategy? And should we agree not to use these policies for consistency, not to encourage local governments.
I believe those still all exist and I think that as we keep a mind in procedure, on those three issues I am willing to go with the majority of the Commission. Have them entertained as straw votes or however it would be and vote them up or down. And I would vote affirmatively for the others. But I have some serious concerns and I hope that we just have a misunderstanding about the ”discourage” language.
Those of us who have worked on flooding, flood control and coastal engineering for most of our careers know that the state of California and local governments do not have now the financial capacity to deal with even a 14 inch rise in sea level. The structure of Proposition 13, 225 and last fall's measure restricting fees limit what we can do.
We need to get through with something that says, we need to look at the economics. Where we have looked at them such as in the salt ponds, I don't believe there is a federal interest, even if the federal government wasn't broke. So we don't have the financial resources to manage it. But I seriously doubt that we are going to be able to afford everything, notwithstanding policies.
Notwithstanding that, I do not believe for one instant that this is a retreat strategy. It is anything but. I think the language that Arthur quoted, which is found in section, in Policy 6a, calls for protecting existing development.
I think to provide balance there are some things that also should be discouraged. In looking at the language I think we recall that the California strategy recommended prohibiting development. The language in the original staff report recommended a much broader test for preserving lands that potentially were suitable for restoration. That language was narrowed after a series of negotiations with the business side.
Now some would argue -- I think if you actually contrast the comments by Sarah Newkirk and Paul's testimony I think it illustrates exactly the balance we are striving to find. What does "discourage" mean in the context of what we have? In the shoreline band it's strictly advisory or less. And I would have no objection to deleting it from the shoreline band because we don't now have the authority to deny a project because it is suitable for restoration.
We used -- after serious negotiations with both sides we used the language "feasibility" quite advisedly. We understand that in the Bay we have broad authority, in the salt ponds we had broad jurisdiction but constrained. Privately-owned land, whether in the shoreline band or in the salt ponds, cannot simply be used for restoration.
That's what feasibility means. That's what I said to the environmental groups. To preserve land for restoration you've got to buy it. We can't simply take the position that it must be preserved no matter what.
We can restrict the use of land for legitimate power users which might include waters of the state, it might include seismicity, but not for its potential for restoration. So I think we found very carefully a balance. And just to do the numbers, because I can’t resist, Paul.
Mr. Campos replied: I'm a port guy.
Commissioner McGrath answered: Well I'm an engineer at the end of the day. There's 400 square miles on the Bay. Add in Suisun Bay if you want, you get to 700, 640 acres. We've got about 250,000 acres in the Bay. The Shoreline Band is a tiny fraction of that. And we are talking about encouraging and allowing development to protect most of it. Can't we discourage some?
Mr. Campos replied: Yes. And what you just articulated, I have not heard it correctly before. But I welcome what you just articulated.
Commissioner McGrath continued: That's what I read in the language.
Mr. Campos added: Then maybe we agree more than we think. Because that goal, what you just said, sounds pretty good to me. So maybe we can get together.
Commissioner Gibbs stated: I am encouraged by what I am hearing and then I will have questions for both sides.
Commissioner Adams commented: I wish my colleague Charles McGlashan was here because he has been following this a lot more closely than I but I did take the time to read this. And in relationship to some of the comments that were made that were referring to the Act that was written decades ago. Great, great Act, but they never anticipated the climate change issues that we are dealing with now.
And I think that because the science has changed and they didn't have Katrina; which years later that community in Louisiana is still dealing with the aftermath. Economically and socially, there are still parts of that area that are going to be still a long time in coming back.
Look at what is happening in the Mississippi Delta right now. Had to knock down levees and destroy some moderate and low-income communities that are underwater now to protect the larger amount. The economy in that area is going to be severely affected going forward. And the bottom line is the taxpayers have to find some way to try to help bolster these communities. At least that's the plea from these communities that are suffering with this right now.
And to bring it to the practical reality of my own community. I have a little community of about 850 residences, moderate to low-income community that was built in a flood plain that has now subsided to below sea level. There is about $30 million worth of levee and pump station repairs that need to happen in that community that they don't have. They can't find the money for it. I can't find the money for it. And trying to get the Army Corps to try to help us with that has been the bane of my existence.
And so the developers are long gone having made their money off of creating a community that was supposed to be wonderful and vibrant and for a long time it was. But now the community and the taxpayers are faced with a really big problem.
And on the broader level when I saw Trav's presentation about our three airports that are at risk. How much is it going to take to shore that up? So we do have some really serious issues.
And when I look at this and I see language that says, we should be looking at our region globally, we should be trying to work together to figure out where is it appropriate to develop and revitalize and protect and where is it appropriate to say, maybe this isn't the best place for us and we should try to find a way to protect or to allow this to be a buffer zone to absorb some of the water that is going to be coming.
ABAG has been working on community planning for pre-disaster mitigation so that our businesses don't go under and become inviable whether it's earthquake or flooding. So there is a lot of interconnection here.
I hear the importance of supporting business and economic growth. But I also don't want to so much water down the over-arching policy and intent that we lose sight of the bigger issue that is coming.
And I guess my question is, what are the specific areas of this California Climate Adaption Strategy that is causing the greatest concern? Are there specific elements in that, because it has been stated in here, that are giving you the most heartburn? What are those? Well no, it's not the whole document I don't think. Hone in on the specific area.
Mr. Wasserman replied: It is, in fact, the whole document because of the way that this language is currently drafted. And again, I am not taking the position that there should be no reference to it in the Bay Plan. I am not suggesting that; I think it may have some value. But the way it is written now it really does reference this. So it is easily possible with the existing language that opponents of a particular development are going to reach in and argue things that do go into areas that are beyond BCDC jurisdiction and have little to do.
And yes, hopefully on a case-by-case basis the Commission would recognize that and say, this isn't fair. But this is almost, not quite but very close, to a wholesale adoption of the entire plan.
So it is not that there are particular ones. There may be and I don't know whether other speakers who may have come have gone through this. I have scanned through this. But it is the wholesale inclusion of all of it that is the problem.
Commissioner Adams replied: See, but when I read it, if I may through the Chair. When I read it I looked at it as a reference document which provided guidelines and I may be wrong about that. So I guess I would need clarification of whether this is an over-arching reference document because it is a California document that is giving us guidance or if it is something we are adopting and actually using.
Commissioner Baird commented: I see it as the overall reference document, we see it as guidance, we see it as the Director of Natural Resources and the Ocean Protection Council and 16 state agencies putting forth what we feel is sort of a common sense approach to these sorts of things. I think ground zero on this thing is probably Policy 4, which says you should consider prohibiting development in places where it might not make sense. And it says you should give special consideration for preservation of those areas.
It's guidance; and I think that's the way it ought to be viewed.
Mr. Lewis added: Commissioner McGrath actually answered this question by highlighting that the language in the policy says what Commissioner Baird just said. The Climate Adaptation Strategy recommends prohibiting development. BCDC is not. BCDC recognizes that's state guidance and for that reason is recommending that local communities discourage developers from going that direction. So if Zack doesn't like that document that's fine.
Mr. Wasserman replied: His answer illustrates what we are concerned about. I think it has the effect to have BCDC providing guidance to local jurisdictions outside the BCDC jurisdiction. The consistency language that's in here clearly says not. But his interpretation just precisely goes to that point.
Commissioner McGrath added: Departure from language is, in fact, a key step in making a very different point which is, we considered it and didn't intend to adopt it in whole. Rather, we intended not to prohibit but to discourage in some areas. And if that is the nuance that is entailed here, that's wordsmithing.
If I could ask Mr. Travis, that's my memory of the discussions that we had is we had that on the table, it's a finding of fact, this was what we recommended. We said, that goes beyond what we have authority to do. But in some areas we do want to discourage. So I think the intent is to say, this is where we started and this is where we end up. Is my memory on this accurate, Will?
Executive Director Travis replied: I think your recollection is quite correct.
Commissioner Gioia stated: I think we're spending a lot more time than we probably need to just on this jurisdiction issue because there's a lot of other issues in which there may be some different points of view. Let's refer to page seven on the language. The Commission intent of the Bay Plan climate change findings and policies will be used as follows: A, B, C, D. It is really clear. The 100 foot shoreline band, the Bay, the salt ponds, it is very clear.
For purposes of implementing CEQA the finding and policies are not applicable portions of the Bay Plan for purposes of CEQA for projects and activities outside these areas.
For projects or activities that are located partly within these areas and partly outside they only apply to those activities or that portion of the project within the areas described.
If we are going in this direction we can provide direction to ensure that the language is as clear as possible. And I just think people are reading way more into the language. And having been a land use lawyer once myself I understand how land use lawyers like to read every single word and read the worst in it. The fact is we are trying to be as clear as possible and this new draft is pretty clear.
Ms. Newkirk commented: I just want to take a minute to cover this question of what the State Adaptation Strategy is and what its relationship to this policy should be. It's been called a lot of things. It's a plan; it's guidance. Whatever else it is, to the extent that it provides you with smart ideas and good policy it's a resource.
And I think Commissioner Adams made a very compelling, real world example of what happens when you don't do what the Climate Adaptation Strategy suggests or guides the state to do, which is to generally not plan, develop or build any new significant structure in a place where the structure will require significant shoreline protection in the future.
It doesn't really matter what the Climate Adaptation Strategy is with respect to your jurisdiction, that's just a good idea. That's just really smart policy and smart planning. Let's stop worrying about the process and the procedure and come back to sort of using our heads about some of the stuff.
Commissioner Gibbs commented: I can weigh in on this because it was at this meeting that we decided to use this language and I want to say why that was.
It is not intended to be a wholesale incorporation of the plan. It is, as Ms. Newkirk said, we did -- what we were caught in was this endless spin cycle of who did we meet with last and where did that language come. And we looked at the language in the State Adaptation Strategy. There were good ideas in it, and particularly on the two most contentious issues, what to do about developed land and what to do about undeveloped land. We thought that that language was the best starting point for this debate so that's why it's in there.
It is probably true that the staff report right now references it a little bit too much and may give the idea that we intend to have a wholesale incorporation. That is not the idea. And we do recognize that it refers to both coastal areas, ocean coastal areas and the Bay and needs to be adapted to the Bay.
But again, with respect to the two most controversial aspects we have been discussing, we thought that language was an important starting point. And it does come from the statewide strategy and we thought it was important to be able to reference it.
Chair Randolph interjected: So on this question of the Adaptation Plan I actually haven't heard any clear objection from anywhere, but I could be corrected on that, that it would be inappropriate to reference the Plan in the document. And it does in fact show up in the findings.
So if, in fact, there isn't a fundamental objection to referencing the Plan, and if as Commissioner Baird says it is guidance, a reference document that has been blessed by state agencies, would it be a reasonable approach to say, we are going to include the reference to the Plan in the findings?
Mr. Feinstein stated: Policy is where the rubber hits the road and so very often people look in findings but they read the policy and it's the policy that is quoted in your staff reports when you're trying to figure out what to do.
So to completely remove it from the policies itself I think would be significantly deleterious towards the policies unless you craft ones which I think my brethren down at the other end of the table would probably not be happy with if you say on your own without the policy preceding it that development on certain areas should be discouraged, which is language you have now. Putting in the California Adaptation Strategy gives you the rationale for why you're doing it.
I did want to bring us back to why are you doing this. And the whole point is, I think, over and over again everybody says they agree, build where appropriate, don't build where not appropriate because we can't afford to build where not appropriate. If you don't have enough language in here to discourage development in the inappropriate places, why bother? So that's one thing in terms of how much you want to weaken the language. Because if you weaken it enough then you might as well not do it, it doesn't mean anything.
Well that's basically it. Why are you bothering if you don't have at least enough meat in your criteria and in your policies that would allow you on a case-by-case project to decide which way to go. And you have to be able to discourage, you have to be able to say, no. So that's one thing.
The other thing is, again, your jurisdiction is very clear. Your ability to deny projects is completely limited to water. The 100 foot shoreline band, we all know you have no ability except for public access. And so the idea that you would abrogate your CEQA and CZMA abilities when you cannot deny projects in any case once you are on land we think is very -- a significant thing that you're doing that we want you to think about a lot because, again, it implies that first of all maybe you don't think CEQA or CZMA is that important or that you should never use it, never comment because you're saying, we're not going to do it here.
So by extension we are very nervous about this setting a very poor precedent that other people will be pushing to continue to limit your ability to comment through CEQA or CZMA on projects that are within your jurisdiction. So we think that's a very, very foolish move considering, again, that you had no jurisdiction on the uplands anyway.
Mr. Lewis added: And Mr. Chairman, I would encourage you to keep the Adaptation Strategy language as it is in the findings and the policies. And the reason is that it provides a basis from the state agencies for the two objectives that Commissioner Gibbs stated at the outset this language is trying to do.
It's not that you can't do that without the language but it provides you with a strong basis, which I think the Resources Agency is encouraging you to do, build on that basis. And I think that's the best way to go.
Commissioner Nelson commented: One simple thought and then a couple of more detailed then a couple of suggestions.
The simple thought is I want to thank the panel because I think this is a very helpful discussion. No one has mentioned the fact that the Commission has received a lot of comments, some of which have been well informed, some of which haven't. But a lot of comments simply saying to us, please don't act. And I don't hear that from any of the panelists. I hear all of the panelists telling us that the Commission needs to adopt policies and I think that's -- I think that's very helpful and helps the Commission move the debate forward. So I want to thank you first for those comments.
Four specific recommendations where I think the panel has helped us think about the path forward. First is I was I'm sorry that Jim Wunderman is not here. I was surprised by the strength of the response regarding the Climate Adaptation Strategy. I didn't expect that sort of response. I read not the whole document but I read the policy language and read it carefully a number of times.
But I will admit, I haven't gone back and read carefully what it says about exactly how agencies like ours should use that document. And I am going to go back and do that, other Commissioners might do that. It never occurred to me that it wasn't appropriate for us to cite that document and use some of those good ideas as starting points for how to tackle the toughest issues. That document does not represent regulations. I don't think we're simply intending to rubber stamp it. But I was surprised by the strength of the response against that.
Perhaps -- I'll go back and reread that document. But if there's something in there that somehow qualifies, provides qualifications regarding how agencies like ours should read that document, please offer those to us. I'll go back and reread that document. The whole thing, David, as well as what you just handed to us.
But I was surprised by that. And if you would like the Commission to back off from that, if you can provide us some guidance regarding why that is that would be helpful. Otherwise the conclusion that leads us to is that you just don't like parts of that document and would rather we not use it. So I'm going to go back and reread that. But if you can provide us with some guidance there that would be helpful.
Second thought, and it gets to the discourage issue that a couple of folks have mentioned. I think we need to be careful to frame the discussion here carefully. This is not a debate between whether we are going to allow infill on the one hand and whether we are going to protect on the other hand. That is not the debate.
The Commission's job is, as Commissioner Gioia mentioned, to encourage investment and development under some circumstances and discourage it under other circumstances. And in the middle is the infill debate. There will be some infill that we believe we should encourage because it's consistent with that development mandate. Some people will come to us with what they will call infill and we should discourage that.
So we have to define, and a couple of people have mentioned this. Define carefully what we mean by infill and I'll get to that in a moment. But I think the starting point is making sure we frame the debate properly. So that means making it very clear that we encourage investment and encourage the protection of highly developed areas now. A number of folks have mentioned that.
So my first request from you folks, second request I suppose, is if we have missed that somewhere. If there is somewhere in here we are not encouraging the protection of existing investments adequately, please point that out to us. I suspect there's plenty of language in here and that language is largely non-controversial. But if you think we are missing something about encouraging the protection of existing development let us know about that.
Second with regard -- third rather. With regard to defining infill. I think Ms. Newkirk made an excellent point. When you look at the current staff proposal for the definition of infill and think about how sprawl works. Sprawl works because we see a development at the edge of a currently urbanized area that is in proximity to an urbanized area. The next development is in proximity to that development and the next one is in proximity to that development. Each one brings investment infrastructure.
My concern is that pattern of sprawl sounds like infill under this proposed development so I am concerned about that. I think we need a tighter definition. I don't know whether 375 is the right definition but I think we definitely should look at -- I'll go look at that and I think the staff should present to us some clear choices regarding how to define infill. But I think when you think about how sprawl works in the Bay Area this definition sounds to me as though it defines certain forms of sprawl as infill.
I also -- on the one hand I am not going to commit to using the 375 definition of infill without taking a look at that. I don't think we are mandated to use that. I also don't think we are mandated nor do I think it is appropriate for us to defer to the priority development areas that come out of 375.
Because 375 didn't incorporate the McAteer-Petris Act directly, it didn't incorporate those issues. The Legislature could have said, it could have made the 375 process a little more complicated by including language about the McAteer-Petris Act, the Coastal Act and so forth. It didn't. And I think what that suggests is that we need to look at those and give them great weight but I don't think the Commission should simply defer to the priority development areas as we contemplate infill.
And then finally my fourth suggestion is about the CEQA question. I want to make sure that if we deal with CEQA here that we are addressing a real problem and that it doesn't have unintended consequences. So my first question, and this is something I'd like the staff to address. Whether the CEQA issue is a real issue, given the state adaptation strategy and a host of other documents?
I suspect that the CEQA bell has already been rung. So whatever we say here, I would like our counsel to give us guidance about whatever we say here. Is there a realistic expectation, a realistic possibility that we will significantly increase a CEQA issue in comparison with a world in which there are plenty of CEQA bells ringing. So that's the first question about CEQA. Would this language actually create a new CEQA problem for somebody?
The second question is making sure that we don't have unintended consequences. If we refer to the Climate Adaptation Strategy and then we say that we are not going to use these policies for CEQA purposes, what does this suggest for how that language is used in a litigation context? I am not an attorney but I want to make sure first that the problem is real and that we don't have unintended consequences if we say, thou shall not use these policies for CEQA purposes. I want to make sure that that doesn't create problems that we are not thinking about right now, or suggestions. Thank you.
Mr. Metcalfe commented: Commissioner Nelson, I thought I would try to speak to some of your questions. Particularly I have been wanting to talk about the definition of infill. I guess let me first say on this -- I wanted to jump in on the question on the State's Adaptation Strategy since you raised that too.
We have relied on that a lot in the SPUR report. It does seem appropriate to cite it to me in this document but there has got to be some room for compromise here, for possibly -- I think Chair Randolph's suggestion of narrowing it. There should be some happy medium here where -- as I read this as a layperson there is finding type language repeated over and over all through the policies. And so maybe you can -- you guys can find a middle ground where it's in here but not so repetitive. Anyway, that would just be my judgment on it.
On infill, okay. It's not going to be a surprise to anybody here. There is no agreement within the planning profession about how to define infill. And SB 375 is not a holy grail, nothing in here is a holy grail. This is, this is a hard question. Similarly there is no consensus definition of what is sprawl.
I would submit that there are two factors you want to take into account. One is, are you redeveloping a site that was already developed? Okay, that's probably infill. If it is next to a site that was already developed it might be infill, or as you have said, it might be sprawl. If it's leapfrogging, that is really the worst kind of sprawl. If it is not even next to an already developed area then you know it's sprawl. That's the worst.
I think what you have here is two factors. The first one, next to an already developed area. You're right, that's sufficiently vague that probably much of the Bay could fall under that. But it is constrained by a second point and I think that's where we should focus our attention. Is it going to be served by transit?
I would submit to you that that is actually what is most important here. Are you developing in a way that you serve the users of that development, whether it be work or living or retail, whatever, are they going to have to get there by car or are they going to be able to walk and take a bike and take transit?
If it is next to an already developed area and it is going to be transit-served, it is going to be walkable, then I would submit that is exactly what you want to encourage. I am just trying to be really practical about this. So I think where you want to really focus is on this transit-served language and make sure that is right. I think that's what, I think that's the way you can really distinguish the areas where you want to encourage development.
There has been a debate on that about committed transit or proposed transit and -- the problem with committed transit is that "committed" is a term of art at MTC, it means fully funded. That's possibly too narrow.
The problem with proposed or with planned transit is that it is not defined anywhere.
I don't have the language right for wordsmithing but: transit that is in the fiscally constrained RTP, the fiscally constrained Regional Transportation Plan. That in fact includes a lot of transit that is not funded but it is the official long-range plan.
Second, if the development is going to pay for the new transit and that is part of the development agreement coming before you. So it's not paid for by MTC but it's going to be paid for some other way. So you have reason to believe the transit will exist, in other words. Then I think that would be the other way you could get there.
So to me I would submit to you the test that is most important is, do you have a reasonable reason to think that the transit is going to be there?
Commissioner Gioia added: Transit is one factor. I am not sure I want to make transit the primary factor where the development occurs in a particular area. There may be -- it's too overriding. So I just disagree that that's the only factor, that's the major factor. I think it is an important factor and I think what you say does make some sense.
Commissioner Nelson replied: And I would agree with that. The most obvious example of that is if you filled immediately off the San Francisco waterfront it's adjacent to existing development, much that is already served by transit. But none of us are going to consider that sort of a Bay fill project infill nor are you --
Mt. Metcalfe interjected: Commissioner, we are not talking fill, we are talking shoreline development. And I am not sure if you are saying this is too narrow or too broad. Shoreline development that is -- what shoreline development is not near transit?
Commissioner Gioia replied: I thought you were getting to defining infill, that's how I heard it. So my point is, transit is an important factor to defining infill but it is not the most important factor.
Chair Randolph asked: Would there be general agreement within the Commission again, a sense of the Commission that aside from the relative importance of transit that moving to a different formulation than planned or committed would be something we should be thinking about. And that a reference to the RTP might be an appropriate reference?
Commissioner McGrath replied: Those are very constructive comments about trying to define a middle area. It is not all there is. But in terms of the data aspect of the infill development, there were reasons we didn't wholesale go for the existing -- we tried to craft this. But I think those are good crafting suggestions.
Commissioner Baird commented: First of all on your comment about the findings in the policies. I think what is most important is that we inform and guide to the extent we can with the work that we have done. And I think what is really important is that guidance and so forth affects what your policies say. So what your policies actually say is the key.
I looked at the letter that the Secretary sent to Mr. Travis about the science that we provided and he said the science should be utilized to inform policies and regulations on planning and development rather than be considered a policy itself. So I think the idea is, let's provide you with the best information we possibly can. I think if you folks said in the findings, that's okay, it might be good in the policies to maybe make a reference back or whatever, make some linkage. I think that's consistent with what he had said.
I think the discussion has been good. I came in here with several issues, the infill issues, the CEQA, CZMA being the primary ones, which were brought up quite a bit in this discussion.
One that hasn't been mentioned much is CZMA. I was formerly the chair of the National Coastal States organization, 35 coastal states, territories and commonwealths. The CZMA we pretty much referred to as the constitution for the coast. Any time I see something that looks like a little bit of a chitting away at the constitution for the coast it makes me just a tad nervous.
But that said, I understand what you are trying to do here. I understand that there is a key concern that this is somehow going to be telling local governments what to do. So I am not sure exactly what the answer is here. I just want to be very, very sure that your legal staff and the policy people looking at this feel that this is not going to compromise in any way what happens with this thing that we call the constitution for the coast. That taking this position is necessary.
And I actually kind of wondered, maybe to the staff, how often have you been involved with federal consistency actions for projects that were inland? Because I don't know has that ever even happened here. And absent this change what's the scenario? What are we worried about here?
So I just have to be the defender of this national coastal thing that people fought for the last 35 years and just to get a sense on whether we need to make this change or not.
Executive Director Travis added: I'm going to defer to our Deputy Attorney General on the legal issue here. But we worked very hard to craft this language so it is not altering how the federal Coastal Zone Management Act operates. That is the prerogative of the federal government. We are simply saying, this is the way BCDC is going to use it in its jurisdiction.
And the reason we don't think from a policy basis this is a very big deal is because over the past four decades when we have had the authority under the CZMA we have only reached inland to deal with issues I think three times.
And if you recognize that the concern that was expressed is that the Commission could use the Coastal Zone Management Act authority to reach inland to a low-lying area and say, you can't do development in that area pursuant to our policies. The Coastal Zone Management Act doesn't work that way.
What the law says is if there is something proposed in an inland area that has an effect on the coastal zone then the coastal agency can apply its policies, its enforceable policies.
Well it’s hard to conjure up – you can do it but it takes a lot of imagination and a long time at the Lair to get yourself to the point where you can have a hypothesis which says, here is a low-lying area that is going to be developed. And while the area may flood and hurt the people there, it’s hard to make an argument that in any way affects the coastal zone.
So we don’t think it’s really much of a restriction on the practical application. And if it addresses this concern, this political concern that the Commission is trying to overreach and it deals with that, we think it’s a good solution. Alice, would you comment a bit on the, on the legal implications.
Deputy Attorney General Reynolds commented: Yeah, I'm not going to comment on whether this policy is a good idea or not, especially in light of your CZMA powers and the way you use the CZMA now.
But I will point out that the way the policy is drafted it instructs you when you are reviewing projects for consistency to only apply these policies to projects within a certain geographic area.
So in other words, you are trying to find out whether a project is consistent. You look at where it is. And if the project is in within one of the specific geographic areas then you would apply those policies to determine whether there is consistency. As drafted now this policy doesn't limit the way that you would apply the CZMA or change the CZMA in any way. It just instructs you as to where the policies would apply.
Commissioner Baird added: If you said something like: because we do not anticipate these policies having, having any impact on what would happen inland we are choosing not to make it very clear that they are not going to apply to any future consistency. I don't know if that helps it or not, I'll just throw it out there. I just want to be sure we're thinking here.
Executive Director Travis commented: I think much of the concern that has been expressed has been based on speculation and that is further speculation. It’s also important to recognize that this limitation applies only to the seven policies in the climate change section. So you could still continue to use federal consistency.
Commissioner Gioia inquired: I have a legal question of staff on this jurisdiction issue. There have been many who say, who believe that when these inundations maps got posted. The maps showing the potential inundation zones based on science that we have. That meant BCDC was going to expand its jurisdiction into those areas. Would you really just clearly address that issue so everyone can hear, hear from the staff and legal counsel on that so it is really clear because that continues to get raised occasionally. So address that issue.
Executive Director Travis replied: If I might. The maps were published in April of 2009. Sometime about a year and a half later somebody said, well, if BCDC has jurisdiction over the Bay and we don't do anything about this problem a century from now the Bay will be larger. And BCDC, if the laws aren't changed in the next 100 years, will have jurisdiction over this area. Therefore, those bureaucrats are trying to show the area that they intend to have jurisdiction over a century from now by exercising jurisdiction over it now.
That has never been our intention.
The best way we found to deal with that dilemma other than saying, not true, not true, not true, over and over again, which we have tried, is to say, all right, let's make it abundantly clear that these policies will apply only within the current area of BCDC jurisdiction.
Commissioner Gioia added: So for those on the 100 foot shoreline band, it is the 100 foot shoreline band that exists today. So if there is some proposed development inland a half a mile in an area that is identified as a potential inundation area, it is not within our jurisdiction and the policies don't apply, period. We want to hear if you disagree and we'll go back. I think this has been a bone of contention.
Mr. Campos added: There are two, two issues that unfortunately have been from the outset conflated. One is whether BCDC's jurisdiction is quote/unquote expanding. That is what you are talking about and that is what the inundation maps are about.
The issue that I have always talked about is whether or not the Bay Plan policies can be applied to projects beyond your formal permit jurisdiction. That is the CZMA question. That is the Acme Fill case question. That has been answered in a published decision and it is fact, the answer is yes. A project completely outside of the 100 foot shoreline band or your permit jurisdiction, as Travis explained earlier, that, A, requires a federal permit, which is most large projects in the Bay Area; and B, adversely affects the Bay in the judgment of BCDC, can be denied under a consistency review. I believe that is an accurate statement of the law.
So this language, I don't believe -- I believe the jurisdiction creep has always been sort of melded in and they are two, distinct arguments. And the one that I have always been focused on -- and frankly, how this came about was I believe it was sort of a red herring. Because people were saying, look, are these policies applicable, are they potentially applicable anywhere outside your jurisdiction? And BCDC staff consistently said, no, no, no, no, no and read that they are advisory, advisory, advisory, no impact, no impact. That's why we had to get into this entire legal debate, which I think -- my interpretation has been vindicated completely. Correct me if I'm wrong.
Deputy Attorney General Reynolds replied: Well, I don't really want to get into a debate on the impact and the possible effect of the Acme Fill case. But I will point out that the Acme Fill case concerned development in the priority use area and applied priority use area policies and that's not what we are talking about here. So I do think there is a distinction between Acme Fill and the idea that you could take these climate change policies and apply them somewhere inland of the shoreline.
Commissioner Gioia inquired: And if we have specifically referenced -- let me ask, so what is the effect of the reference in our policies that says they will not be applied in that circumstance?
Deputy Attorney General Reynolds answered: Well, in Acme Fill the court was looking at policies that clearly applied within the geographic area where the project was located. And so -- what we are looking at in drafting these policies is a proposal to state the areas where we think the policies apply and that would be in the limited area of BCDC's permit jurisdiction.
Commissioner Gioia asked: So is it your opinion that we can draft this policy in a way to prevent the Acme Fill issue?
Deputy Attorney General Reynolds: I believe that's a clear distinction from the Acme Fill case, yes.
Commissioner Gioia: So is it your opinion that we can, that this can be drafted in a way to ensure that the jurisdiction issue, I just want to be clear here, that has been raised can be addressed?
Deputy Attorney General Reynolds answered: That is my opinion looking at what we are discussing now. I wouldn't want to comment on a future case that might come up. Yes, that is my opinion as we are sitting here today.
Executive Director Travis added: Well I think Mr. Campos is correct, there are two different issues here. One is the jurisdiction and one is the stretch of the federal Coastal Zone Management Act. And I think, frankly, he is too conservative.
In the East Coast there was one state that exercised federal consistency over a project in a different state. So it does give a state the authority to do that if they can find that it has an impact and effect on its coastal zone and they have enforcement policies to deal with it. I think this language addresses both of the concerns and the issues.
Mr. Lewis commented: The other aspect though is whether as a servant of the federal government in applying this federal authority that you have, whether anything you say in your Bay Plan about the extent of that federal authority changes the federal law.
Executive Director Travis responded: It does not.
Mr. Lewis continued: And so whatever you say, if somebody else says you are not, if the federal government thinks you are not applying that law appropriately then the federal government will deal with that, right?
So there is a limit to what, I think there is a limit to what you should try to do on this federal consistency issue in your policies for that reason, because it is not for you to redefine the extent of your application of that law. And what you can say in a finding as we have suggested is, we rarely use this, we don't think we are going to have to use it a lot, there are all kinds of constraints to using it. But you can't change the legal authority that you are getting from the federal government.
Executive Director Travis replied: We fully agree. That's why with the counsel of the Attorney General's Office this is crafted in such a way that it doesn't affect how the federal law is implemented or carried out or administered.
Commissioner McGrath commented: And to Commissioner Baird's concern, which I shared and this was a difficult concession. And it's a concession made both as a good-faith effort to bring people to the table but also recognizing that how we adapt to sea level rise is going to be more complicated than the consistency review authority was intended to capture.
We are going to have to do things to our streams with public funds and with Corps of Engineer permits and with Section 404 permits outside BCDC’s jurisdiction. It's going to be done as a combination of a regulatory matter and incentive matters and it is going to be extremely complicated. You can't wag that dog from the impact of delivery of sediment to the coastal zone of BCDC, even though that is a concern. And those concerns will be dealt with in that issue without the consistency review authority.
It is a narrow exception recognizing that there are other procedures out there at that are more effective at addressing the most fundamental concern.
Executive Director Travis stated: I have found today's discussion extraordinarily helpful. And if you agree what I would propose we do is we have heard some suggestions. Let our staff take these back and we will put out some further revised language. Admittedly we won't be able to get it out until next Friday. And then we can invite all these panelists back on the 2nd and continue this discussion to see if we are in agreement on this. Is that acceptable?
Mr. Lewis suggested: I would volunteer not to be a panelist, not to have a panel if that would allow more of the public comment next week and for the Commissioners to actually share their views. I think we have had ample opportunity to get our input in and I don't think future language should be trying to satisfy us. I think you should be working with each other to get to finality. That's my suggestion.
Mr. Wasserman commented: Just very briefly. The other concern that led to the consistency language, and I do appreciate that it was offered in the sense of a total compromise package that made sense overall.
But the other issue is that because the earlier drafts had language in it that certainly appeared to provide guidance outside the jurisdiction.
Commissioner Gioia interjected: But that's not in here now.
Mr. Wasserman replied: I understand that. But that is one of the reasons why we think that consistency language is also important.
Ms. Newkirk stated: With respect to my colleague. The federal government isn't the master for consistency review; BCDC is the master for consistency review. You are not the servant of the federal government for the purposes of applying CZMA, you actually have -- you have been granted the authority to do your own consistency reviews that comport with your own policies.
And that should lead you back to what makes good policy sense in terms of applying that authority. Do these policies make good sense for planning in the Bay? Yeah. Do they make good policy sense for doing consistency review? Yeah. Do they make good policy sense for CEQA? Yeah. Is it consistent with all those laws? It sure is. I don't think that this is part of your authority as the implementing agency for the purposes of CZMA. You are not the servant of the federal government.
Mr. Feinstein added: BCDC has no control over shoreline infill. It could be a guidance document that the local agencies can look at but BCDC has no ability to tell anybody who is building on the shoreline, don't build because it is going to get flooded. It has no control over that. It can say, don't build because you don't have public access. Then they put a trail through and they get their permit.
So we are not talking about that, we are actually talking about infill in the Bay. That's the nitty-gritty here, what this is talking about.
Executive Director Travis commented: Actually we're talking about salt ponds and managed wetlands.
Mr. Feinstein concurred: Right. Well, you could also do it in the Bay. If you wanted to call it infill there you still could do that. But it is also managed wetlands and salt ponds and that is where we are talking about -- when you say transit, that somebody should have an RTP into a salt pond or something. Transit is not the only issue we're talking about, there's adjacency, is there existing infrastructure.
And what BCDC needs to be looking at is what are we losing if that's infill? And so you want a pretty tight definition of infill, not a broad one, so that we don't go around filling in our salt ponds and managed wetlands because you can define almost anything as infill through the way it's described right now.
So that is our concern. And again, we are not talking about uplands. And Barry's suggestion was absolutely credible. You could propose to have infill right next to San Francisco in the Bay. There are other policies that would say no.
Chair Randolph commented: I want to raise one last question in the interest of kind of getting some sense of the Commission on key issues. And this goes back to I think something Zack raised earlier and something Commissioner McGrath spoke to at the beginning, which is Policy 4 where midway through there is a reference to the Climate Adaptation Strategy. And it says:
"To advance the state policy objective along the Bay shoreline and to address the regional adverse impacts of climate change, undeveloped areas that are both vulnerable to future flooding and currently sustained critical habitat for species or possess conditions that make the areas especially suitable for ecosystem enhancement should be given special consideration for preservation and habitat enhancement should be encouraged for use for those purposes."
Then there is a sentence: "Development in these areas should be discouraged."
So we were hearing from the business groups earlier, I was hearing a lot of sensitivity about the word "discourage." And going back to Commissioner Gibbs' presentation earlier about I think the direction we have been working from in the working group where there is clearly a preference, a stated preference, unambiguous one. that those kinds of properties or lands should be restored under these circumstances. That is clearly stated, that the Commission has that preference right up front in that first sentence. So I think the question is right now the last sentence, which is: "Development of these areas should be discouraged." It puts it more into an active, forward tense. It sort of puts it more in bold. And I think it's a policy question for the Commission.
I am really directing this question more to members of the Commission than for the panel. We are on page eight, Policy 4. A clear preference that these lands be protected and preserved. If we were to drop the last sentence that refers to development should be discouraged. Give it precision. Is there any sense or views from the Commission when we go back and start to work on language in the next go around about the direction.
So I'll restate it really, really quickly then for the record. That the Section 4, Policy 4 on page eight. Up to the last sentence states a clear preference for restoration and preservation of habitat in certain kinds of lands. The final sentence says, development in those areas should be discouraged.
So the first part says, preservation should be encouraged, the last section says, but development should be discouraged. Am I getting it right? There is a preference stated for preservation, it should be encouraged, then development should be discouraged.
My question really for the Commission is, what is your sense about the direction we have been going in our conversations in the working group that we should have, we should state a clear preference in these cases of critical habitat, especially sensitive lands, in favor of preservation.
But then the last sentence where it says, development of these areas should be discouraged, that is a stronger, more affirmative statement of discouragement. So if we were to drop the last sentence is the formulation up to that point adequate? So we are looking at the nuance here. A preference of where we want to encourage preservation versus a significantly stronger statement about discouraging development. Any sense from members of the Commission would be welcome as we start the next draft.
Commissioner Gioia stated: I am reading all of these in conjunction with how they read together. Because you have got Policy 4 that happens to reference the Climate Adaptation Strategy and what it recommends. And then we have got climate Policy 7 on page nine that also says, Climate Adaptation Strategy acknowledges that vulnerable shoreline areas containing existing development or proposed for new development that has or will have regional significant economic and so forth. That policy is sort of read in conjunction with 4.
Chair Randolph replied: That's right.
Commissioner Gioia continued: To some extent, right? Because I think when you look at 4 you get the impression it means, prohibit development. But when you look at 7 you really, for example, it talks about protecting development of, for example, public utility, transportation facility, critical infrastructure, all of that.
It's hard to make these kinds of decisions just out here. But again, it's hard always picking one sentence, it's about how they all work with each other. And my sense is that yeah, that may be a good idea to take that last sentence out but ultimately it's how these are all melded. And so I'm not -- I think you're trying to take it out maybe for the reason of removing the number of references to discourage.
Chair Randolph replied: I think it's just one reference to discourage as far as I know, in that sense.
Commissioner Gioia concurred: Yeah. I'd be interested to hear. I'm trying to understand how they work together. It sounds like it may be a good idea but I am trying to see how this works with 7.
I think if you do that it actually may be good because 7 does provide that there is development according to sort of the guidelines here because some people will still read the rest of 4 as saying it prohibits development when in fact it really doesn't. It prohibits development of very specific circumstances when you make that determination.
Chair Randolph added: All right. I think 4 and 7 are read together and that 4 expresses a preference or encouragement for restoration of these kinds of properties and then there is the discourage sentence. But 4 does link directly to 7 where there is development. Commissioner Nelson.
Commissioner Nelson commented: I just wanted to follow-up on Commissioner Gioia's comment here, I think it's important. I don't think this is where the controversy lies, actually. I think there are very clearly places where there is undeveloped, vulnerable land with habitat where we want to discourage development. And I think everyone on the panel would agree to that. So I don't think this is where the controversy lies. I would tend to leave that language in there.
I think where the controversy lies is in trying to develop a tighter definition of infill so that we can have a better conversation about what passes that test or not. Where is it, what are we going to consider infill? The San Francisco Waterfront where we have clearly got infill that might help finance improvements necessary for flood protection? We want to encourage that kind of development.
And there is also some, there are some projects I think everyone would agree where someone might come to us and propose a project, call it infill and we think it probably doesn't pass that test.
So I would tend to leave this language in because there is clearly undeveloped vulnerable land with habitat or habitat potential where we do want to discourage development. I don't think this is where the controversy lies. I think where the controversy lies is trying to develop a tighter definition of infill.
And that is not an easy conversation. I think it's important to focus on that. I tend to think that things like CEQA and maybe CZMA may be chasing ghosts. But clearly we have an important challenge in defining infill appropriately.
Mr. Campos asked for clarification: I'd like to get clarification on the question. Earlier Commissioner McGrath, you stated it was your opinion or your understanding that this language in number four did not apply and cannot apply to the shoreline band and salt ponds.
Commissioner McGrath: Through the Chair, if I might. That is not exactly what I said. What I said is I would be willing to drop the language of discourage in the case of the shoreline band because we don't have the authority.
So let's say that there is an area within the shoreline band that now has habitat value. CEQA authorities require that those values be preserved or mitigated but not enhanced. An enhancement only occurs if there is some type of public acquisition. And I am comfortable with that, that reflects our jurisdiction and I am not looking to increase our jurisdiction.
However, the unfortunate thing is this policy as it sits now applies not just to the shoreline band but also to wetlands and the Bay and salt ponds where I think there are good reasons to discourage. So taking out "discourage" on a wholesale basis does bother me. Taking it out for the shoreline band does not because we don't have the authority to do more than preserve. And we shouldn't pretend to have authority when we are not willing to ask for authority and I'm not. So is that clear enough, Paul? Did I clarify?
Mr. Campos answered: Yes. But I think that's -- getting to Commissioner Nelson's point, that is also one of the major issues is what is the language about discourage or encourage preservation but also to what areas does that language apply? And I think that there might be some very different interpretations on the panel and among perhaps the Commissioners about where this is intended to apply, where it can apply. So that's a question that I think really is worth getting as much clarity as we can because I think it will determine in many ways what language different folks find acceptable.
Executive Director Travis commented: I think Mr. Campos has really come up with a good reason to take the language out. Because you can't apply it within the shoreline band. Within the Bay this kind of development is not only discouraged it is almost completely prohibited. And within the salt ponds and managed wetlands there is existing policies in the Bay Plan and the law that strongly discourage it.
So why say something that is already said in other places and in the one place where you can't implement it, it’s confusing.
I think taking the language out is the most simple, elegant way of solving a problem, particularly the problem that the business community simply hates this language.
Commissioner Baird asked: What if you simply defined these areas and just said, development in the Bay and in the managed wetlands or whatever it is discouraged.
Executive Director Travis replied: Well then we are getting very cumbersome policy that would have all kinds of footnotes. It is the easiest thing to do just not to say it. It's already part of law in most places that you are concerned about.
Mr. Lewis added: So is the limit on -- the extent of your jurisdiction and limitation of your jurisdiction. So if you are going to take that out why not take out all of Policy 1 for that same reason?
Mr. Feinstein commented: And if you are only taking it out because the business interests don't like it, well I do hope you consider how the rest of the community might feel too because I am quite upset by that comment.
Commissioner Vasquez commented: I too had trouble with the word "discourage" or "discouragement." I think it's troublesome. We don't use the word "encourage" when we find areas in which we want to develop. We don't use the word, encourage development. And words are important and they carry different meanings for different people and obviously there are a number of us who have a different take on what that word means.
And by our nature as an organization, we are a permitting organization, we have regulatory responsibilities. So anyone who has gone through a permitting knows there is a certain amount of discouragement that goes through that. And whether you're willing to go to the end of it really is a matter of determination on your part.
So there are obviously ways in which staff and Commissioners can express their opinion about whether they want development to occur or not to occur in areas. And I think those are, again, what the Commission is supposed to be doing. And I don't think you can put everything in a set of rules or policy that is going to match up to every case that comes before us. And again, I can believe that a case-by-case approach is what we are here to do and that's how we make these decisions.
Commissioner Wagenknecht added: Mine is more of a process question. I am concerned that we have got an audience here that has been waiting to speak to us and they are going to have this much time to speak to us.
I kind of liked Travis's suggestion of getting the new wording down that they heard batted back and forth. I'd like to hear from the audience. And then I would agree with David Lewis that I would like to hear from us and use this next time for our discussion for most of the time that we are here.
Chair Randolph stated: I think it's a conversation of the Commission now to look at what staff can take away from this conversation, resubmit to us and continue to refine our sense of what language will be finally put to a vote.
So with that we will be taking public comments in one moment. We want to finish with Commissioner Gibbs who has been waiting for awhile.
Commissioner Gibbs commented: Thank you and I am sensitive to the concerns and having the public have the opportunity to speak. This has been very productive today.
One of the purposes that we hoped would come out of this meeting was that hopefully some grand compromises would emerge. And I think they are and I think we are getting close. But we also wanted to have the groups on the record concerning what those compromises might be. So I am just going to ask a couple of questions along those lines.
And the first, first starting with the business groups. I'll just ask you. It has been put forth that SB 375 be used as a definition for infill development. Could you submit your comments on that issue.
Mr. Wasserman replied: We will. Absolutely we will.
Commissioner Gibbs continued: And then second of all, one of the things I appreciate about Mr. Campos is he always speaks very directly and he always pays attention to the language. And he has done so today. And you said earlier, I tried to state in broad terms what our policy goals were on the big two questions. And I think there is a grand compromise out there.
With respect to the business community. And we are sensitive to your objections to the use of the word "discourage" and ultimately this is about words. But what we have said is that with respect to undeveloped lands that support critical habitat or can be a source for important ecosystem restoration, that the priority use for those, the preferred use will be restoration or preservation.
If we take out the word "discourage" to my mind that will still leave as practical guidance for future Commissions, if somebody wants to bring a development forward in those lands with critical habitat or important ecosystem restoration, we can take out the word "discourage" but there still will be a fairly high hurdle. Can you live with that compromise?
Mr. Campos answered (Microphone not on): Yes.
Commissioner Gibbs continued: Okay, thank you.
The second big question is what to do with undeveloped or land which is already developed or suitable for infill development. And if I understand your point about the language as it stands, first it would be a determination that there is kind of region-wide benefits to this development. And I think we have in mind for that the notion of sustainable communities. And once that was determined as the language stands right now, it may be eligible for approval. And I think you have recommended -- what are you asking for instead of "may?"
Mr. Campos responded: Well there are a couple of approaches. I guess we would want equilibrium between -- In certain areas there is a, as you're saying, a presumption or actively promoting habitat restoration. In other areas -- and again this is contingent on what infill means and where this language occurs. But equally strong language about promoting and actively encouraging development.
Commissioner Gibbs replied: Or in terms of regulatory language I think that would be, if a determination was made that there were regional economic or sustainability benefits if that determination was made that it should be permitted.
Mr. Campos answered: That would be one possibility.
Mr. Metcalfe suggested: I think the term might be "should be encouraged”. That would be the parallel term to "should be discouraged."
Commissioner Gibbs continued: Okay. Okay. Then let me turn to the environmental community. In these cases where it is determined that there is region-wide economic or sustainability benefits to a project in already developed land or potentially infill land, could you agree with the formulation "should be encouraged?"
Mr. Lewis replied: Yeah, if the infill definition is correct and if there is not an encouragement of development on lands that should be protected where development should be discouraged.
Mr. Feinstein agreed: I do agree. I think the key is the infill definition. Nobody on our side of the table has said, don't develop. Where appropriate. BCDC has always done that. But BCDC has very clear criteria for when you do it and it does have language in the Act that says, minimum fill or deny a project if there is a practical, basically upland alternative. So it's feasible but you have to have your criteria there. And if you have a very loose definition of infill then it's the same thing as saying build anywhere. So that's the key.
Commissioner Gibbs added: Then thank you to both sides, I think we have a real basis for moving forward.
Chair Randolph announced: With that we will turn now to members of the public. And I apologize we have run over but I think we have run over in a productive way.
I am going to ask you to limit yourself to two minutes today. First up is Ian Wren and then he will be followed by Daniel Reidy.
Mr. Wren commented: My name is Ian Wren; I'm a staff scientist at San Francisco Baykeeper.
I'm a little disappointed that it's kind of turned out to become an issue of the environmentalists versus the business and development community but that's another matter.
I thought it was illustrative in the last week both the Wall Street Journal and NPR’s Marketplace, which aren’t exactly known as bastions of anti-business sentiment, both featured stories about sea level rise and what cities area doing to plan for it and how insurance companies are starting to incorporate sea level rise within their risk models to determine whether they ensure coastal developments.
And this highlights the fact that this isn't really an issue of environmentalists versus business people but more about the long-term sustainability of the San Francisco Bay area. And if this Commission does not act to require appropriate development along the shoreline then insurance companies will likely do it for us as they are already doing in other parts of the world.
You have heard from people today expressing dissatisfaction that not all of their recommended language was included into the current draft and that last-minute changes were made without their knowledge. But as you all remember it was made clear at the last hearing that changes would be made to reflect input by the environmental community and BCDC staff.
No one is going to be happy with this policy but I urge you to direct staff towards finalizing a policy that is informed, based on the informed input of numerous policy makers, scientists and engineers.
Mr. Reidy commented: I am speaking on behalf of the Harbor Bay Business Park Association and the property owners and tenants of the Harbor Bay Business Park in the City of Alameda. That park is 320 acres in size, it’s about 85 percent built out, over 100 businesses and institutions.
We were encouraged that the inundation maps showed that the Harbor Bay Business Park is not color coded to be subject to and vulnerable to sea level rise.
We also have existing agreements with BCDC that would permit us to finish the development. Most of the parcels that are vacant are at least partly in the 100 foot band of BCDC.
What we are concerned on the discouragement language that came up earlier is that depending on how that might be interpreted later, BCDC might -- it could be like a pretext to back away from those agreements that would allow the complete build-out of the parcels along the shoreline in the business park.
On the matter of the infill I would like to agree with, I think it was Barry Nelson's comment. We are a little bit concerned just to limit the definition of infill. So much emphasis on the priority development sites and the FOCUS programs. I think that the definition of infill should be broadened to allow projects like our business park to be a priority development site.
Now our concerns go beyond just our own property. Our property owners and tenants are involved in the whole Bay Area economy, depend upon the vitality and growth of the San Francisco Bay Area. So today we want to register our solidarity with the concerns raised about the proposed amendments by the Bay Area Council, the Bay Planning Coalition and the Building Industry Association. Thank you.
Mr. Jonas commented: My name is James Jonas and right now I live in a solution for climate change.
I live in a home that floats and every day my house goes up and down with the tides. I live in a floating home. Floating structures offer something for both environmentalists and developers as I live on the water. My floating home provides habitat restoration and housing, versus restoration or housing.
So the question is, is there a way that we can sit there and make changes to our house infrastructure, to our building infrastructure over time? The history of successful shifting of our building stock over time has been done before. Fire codes have been implemented, earthquake reinforcements have occurred, safety features have been added. In fact our homes and buildings are some of the safest in the world.
Ms. Raabe commented: I am Gail Raabe and I am speaking on behalf of Friends of Redwood City, a locally based citizens group supporting smart growth and Bay protection in Redwood City.
I would like to use Redwood City to illustrate why I believe your most important decision regarding the proposed language in the climate change amendment really comes down to the definition of infill.
The new Redwood City General Plan calls for building high-density mixed use housing in our downtown and along the Caltrain and El Camino transit corridors. These are classic, smart growth, infill areas that are actually identified in the FOCUS program and in the Greenbelt Alliance's Grow Smart Bay Area report.
If you overlay BCDC's sea level rise map onto the map of Redwood City's new general plan a significant amount of the area proposed for future development would be inundated. In many cases flooding could occur with only a 16 inch rise. And yet I bet everyone here in this auditorium today would agree that this is a good example of exactly where we need to grow and develop because these locations are already improved with infrastructure, transit and development that has economic, cultural and social value. And this is most important: on land that will need to be protected from sea level rise in any case. This is what responsible infill looks like.
The climate change amendment must be very clear about defining new infill development within BCDC's jurisdiction that would truly advance our collective regional goals without creating new local burdens. The amendment must also clearly define new development that should be discouraged.
The Commission should not adopt the current proposed definition of infill because it would actually sanction in advance building in undeveloped, vulnerable shoreline areas. These areas have no existing infrastructure, not served by transit, not part of the current urban footprint. Building in these areas would actually increase our region's future economic liabilities while decreasing regional opportunities to bolster the resilience of critical bay habitats to the impacts from sea level rise. Thank you.
Ms. Best commented: Good afternoon, Linda Best with the Contra Costa Council. We are one of the signers of the Bay Area Business Coalition letter that you received and in that letter we have expressed our concern that the new language being so reliant on the CCAS would make it very difficult to evaluate on a case-by-case basis projects that would help further regional goals such as economic development, jobs and the sustainable community strategy.
But it sounds like the discussion in the last half hour is very encouraging in that there may be some room to reach some compromise. And we hope that the ultimate language that you come up with will address that issue and find a way to not discourage projects that really further other regional goals such as the ones I mentioned.
Mr. Bjerke commented: My name is Guy Bjerke and I am the Bay Area manager for the Western States Petroleum Association.
The Bay Area refineries directly and indirectly produce 34,000 jobs per year and produce the product that fuels the California economy.
We appreciate the Commission's decision earlier this year to go an additional mile in terms of outreach to inform the public and the business community about what was going on with these Bay Plan Amendments. It allowed us to get better informed about the Bay Plan Amendments and I think it reflects well on this Commission.
All five refineries are concerned about these policies because 60 percent of our crude slate in California comes or arrives by tanker. And all of these facilities in the Bay Area, of course, are adjacent to the Bay. And so I am here today, A, to get better educated about these policies, to express to you our concern that you adopt policies that make it possible to protect these vital assets to the Bay Area economy and to the California economy and I look forward to working with you to do that. Thank you.
Mr. Coleman commented: Chairman Randolph, John Coleman with the Bay Planning Coalition. I would like to applaud how you ran the meeting today and the dialogue that took place amongst the panelists and the Commissioners; and also to let you know that I did submit a letter on behalf of the Industrial Association of Contra Costa County.
And I also would like to point out, since some Commissioners believe that the business community is here to delay and to obfuscate the process, we are not. We would like to see this come to a conclusion and we would like to be able to be supportive of the process in the final conclusion.
Though ultimately it is going to end on probably two words, infill and how it is determined. But we also think that it is imperative that as we move forward that we have an honest dialogue and talk about the wordsmithing, and it was addressed today. And that we can be able to embrace it. We would like to be able to have the Bay Planning Coalition come up here and say we are supporting what you are doing and have it move forward.
And ultimately what we are talking about is the opportunity for economic vitality and growth here in the Bay Area and not taking, destroying the environment at the same time and I think that can be accomplished. Thank you.
Mr. Smith commented: My name is David Smith and I am with DMB Associates and I appreciate the opportunity to speak to you today. I am actually just going to speak to a couple of things that struck me from today.
Number one, I know how hard you all are working to find the right spot on this and we really do appreciate it.
I have two specific comments and then a little further out. I think Commissioner Gibbs really hit the nail on the head when he said, we are getting down to the question of undeveloped areas and a desire to see restoration on those. And then the context of infill on developed areas.
I started going into Commissioner Gioia's intent and desire that I heard that I also agree with that clarity in these proposed amendments is a very beneficial thing, especially to the development community.
But I think as we move forward and appreciate the magnitude of the challenges that this Commission is trying to grapple with, let's not kid ourselves. This inner core region, whether you talk specifically the 100 foot shoreline band. That shoreline bayfront area that was quoted in McAteer-Petris on both sides of the equation is not just a forward-looking consideration, it's where everything is now as well. It's where our critical infrastructure is, it's where transportation infrastructure, it's where our wastewater treatment facilities are. We need to bring every resource to bear at least for your critical consideration.
I heard a thought that certain areas should just be off limits. Certain areas don't include the proposals that go with them. I know certain folks feel strongly that depending on where it is it shouldn't even be considered. I suggest to you that a full vetting and consideration, especially in those most critical regions, the funding they bring, the protections they bring to existing vulnerabilities, is worthy of your consideration at the project level. Thank you.
Ms. High commented: My name is Carin High, I am a member of Citizens Committee to Complete the Refuge. The success of our group in acquiring and restoring wetlands demonstrates the overwhelming public desire to protect in a natural state the lands that ring San Francisco Bay and I hope you keep that in mind.
We are advocating encouragement of the Bay's responsible use. And we are not saying it strictly from an environmental perspective of protecting species. But if we quote the CCAS:
"The preservation of healthy, resilient ecosystems with a rich plant and animal biodiversity is critical to the health, safety and welfare of human populations. And that is because of the benefits that these areas provide in terms of water quality, shoreline protection, nutrient recycling."
I have heard a lot of talk about how there a lot of emphasis on the discouragement of protection of the -- discouragement of development. But I want to bring you back to Policy 6A which says:
"The entities that formulate the regional strategy are encouraged to consider the following strategies and goals, including amongst them economic prosperity by protecting to the maximum extent feasible existing development that provides regionally significant benefits, new shoreline development that is consistent with other Bay Plan policies."
So it's not that development is discouraged or is not encouraged. And we are just trying to get a balance here because from our perspective, the protection of environment is in fact subservient to development in the language as it is currently written. Thank you.
Ms. Salzman commented: My name is Barbara Salzman, I am representing the Marin Audubon Society.
You need clear policies to govern yourself and to provide guidance for applicants and members of the public.
One thing I wanted to bring up about the Climate Adaptation Strategy, which has many wonderful components and I agree with all the ones that are in here. However, the constant reference -- and I have mentioned this in the smaller groups -- to consider, is very troubling.
And that wasn't brought up today and I think it warrants some discussion or explanation. Because it feels like you -- there is a question about whether you would be able to in fact take a clear decision with only directives to encourage or prohibiting development or consider not doing this, consider doing that.
I think that if there is a way to delete those references to encourage and have a clearer statement of preference for or discouragement, whatever it is, it would be much to the benefit of the public who are trying to address this.
I would like to also say in terms of clarity that the development really needs no encouragement. There will be lots of development proposed and you should not really be referencing that in your policies.
Mr. Miller commented: Chairman Randolph and Commissioners, my name is Wayne Miller. I am concerned about the environment, the Bay, the oceans, as I have been a student and researcher in chemical oceanography for many years and unfortunately I am living too close to sea level rise right now.
Personally and scientifically I would not even consider purchasing or living on any property built on landfill that is adjacent to the impact of climate disruption and sea level inundation, no matter what protections were proposed.
I sent numerous scientific references and documents to BCDC and Bay Cities including the CCAS quotes addressing the science of global climate change, sea level rise, earthquakes, tsunamis, liquefaction, storm surge and other environmental disruptions including changing ocean chemistry, which is the most important change to consider now over sea level rise, although both are interrelated and will impact the Bay.
We do not want short-term economic gains for development which will eventually require hard protections such as sea walls and armoring to result in long-term economic loss costs and peril to the public and our environment in the future.
Most important in association to the CCAS policy is to not develop in areas vulnerable to sea level rise that will require protections, especially hard protections, armoring and land filling. Specifically it encourages habitat restoration development, wetland buffer zones and others which are inexpensive methods and can be implemented now. We are interested in long-term sustainability of the Bay and benefits from the healthy Bay ecosystem so environmental protection must not be subservient to development.
In summary, things have changed and are changing regarding climate disruption and climate change. So we must address current science, which also includes adapting state policies such as the CCAS policies, fortunately. Thank you.
Mr. Olson commented: My name is Brad Olson, Environmental Programs Manager at East Bay Regional Park District.
I have commented on the proposals before and I don't want to repeat other comments that were said today but the Park District is in somewhat of a unique position in that we are both a conservation organization and a developer. We have 19 parks along the shoreline, 17 of which are under the Commission's jurisdiction in part or in total. So we are both developing park facilities and we are conducting restoration projects, which help to buffer the effects of sea level rise on our parks.
We are concerned about adjacent developments that are being proposed in areas that will have adverse effects on our park plans so we feel it is important for these policies to provide guidance to local governments so that they are considering the effects of their developments on adjacent open space areas and parks.
I think there is a need for policies because right now we are working on developing several park facilities along the shoreline including segments of the San Francisco Bay Trail and restoration projects in Albany and Richmond and other places. So I urge the Commission to adopt a set of policies that serve as guidance for local government.
And I think the suggestions today about infill and about a balance between conservation and development are comments I would like to echo as well. Perhaps not as eloquently as other speakers but I definitely think those are key considerations for the policies. And I think that an infill definition is key to protecting these resources. Either to have it in the Plan or to have it be deferred to other state agencies such as through SB 375. Thank you very much.
Ms. Weems commented: My name is Margaret Weems. I am a lawyer from Weems Law Offices in Fairfax. I represent small businesses and developers in Marin County who are concerned about the language that was discussed today by the workshop with the Commission.
What our initial problem is, and I think it's reflected, if something can't be clear and if you are going to have what amounts to a regulation that is supposed to guide individuals and businesses in the development process how to plan appropriately, how to approach their municipal governments, how to read master plans, how to approach BCDC for permits, you need clarity.
These policies are not clear. This amendment is unnecessary. And you can't have 50 people who participated in drafting the document argue about the really how clear it is, despite their good intentions.
And what I would recommend and propose on behalf of my clients is that you don't need this amendment now. There is nothing that improves the performance of BCDC by adopting these amendments. There is nothing from SB 375 that requires these amendments. And a guidance document is not, is not impossible without an amendment. Thank you very much.
Mr. Hunn commented: I am a consultant representing Canalways Partnership, which is a 100 acre infill parcel in East San Rafael, the most densely populated area of San Rafael. It has the potential to be a mixed use development, have ferry service, do solar and be connected to a train, all those good things. But oftentimes it has been stigmatized by wording in government plans such as the BCDC.
In the last General Plan the words were taken out of government documents to say, nothing should be done on this infill property which is surrounded by Target and Home Depot on one side and Spinnaker Bay Point Homes on the other and small business on the backside.
So what I, what I am hoping is that you are very careful about the stigmatization that can come from uses of words that hurts loan values, hurts you in the General Plan and hurts the property owner when they are trying to do something big or good.
And what I would say is I think the business community might be a little bit heartened if somewhere in bold print in the document you said something like, these are recommendations and guidelines only. They are subservient to the timely, local, human and economic needs that are relevant to the jurisdictions they are in. I think that's BCDC's mission. But sometimes political groups in Marin County will twist it and present to the people in the audience who don't know that much more those kind of issues.
So the stigmatization in the wording is what we are really concerned about and I hope you keep that in mind. Thank you.
Ms. Saunders commented: My name is Sabrina Saunders and I am from the One Accord Project, a project that is a 501(c)(3) for African-American clergy to increase civic engagement. And I would like to read a letter that has been signed by several prominent African-American clergy members in the city of Richmond.
Dear Mr. Randolph and Mr. Travis: It has come to our attention that the San Francisco Bay Conservation and Development Commission intends to bring its proposed Bay Plan Amendment on climate change back for additional hearings and a vote after the summer.
While we applaud the additional time the agency has taken to receive input and to consider changes, reports from representatives for the broad group of stakeholders who have expressed concerns and objections to the proposed amendment lead us to remain strongly opposed. A plan amendment that calls for restricting new development and economic activity in low-lying areas and that would have us consider abandoning neighborhoods that can't protect themselves from rising sea waters is unacceptable.
Hurricane Katrina caused such misery. Not because neighborhoods were built in low-lying areas. It happened because government did not see to it that levees were strong enough and high enough. According to your own reports low-lying areas around the Bay are disproportionately home to low-income residents. In Richmond and elsewhere the residents of these neighborhoods and the merchants that run small businesses there deserve commitment on the part of your agency and all levels of government to protect bayside communities.
Your new Bay Plan Amendment on Climate Change should encourage public/private partnerships between developers and government to create jobs and build new partnerships.
I would like to leave these letters that have been signed by clergy members for your record. Thank you.
Mr. Butler commented: I am the Planning Director for the City of East Palo Alto. The City has been following the discussions and negotiations and is actually very pleased to see the incorporation of a group of representatives of the business community as well as the environmental community.
We would wish to have seen at the table a representative of some of the cities that are impacted. As we have done in the past, the deliberations and discussions that are occurring here today we will bring forward to our city council and planning commission to provide further input. So at that juncture that is all I am going to say today and I thank you.
Mr. Reeves commented: My name is Evan Reeves. I am the policy director with the Center for Creative Land Recycling. We are a regional nonprofit that supports brownfield and infill development. I have just three quick comments because I know everybody has had a long day.
First we want to strongly support the effort to find some reasonable compromise between the planned versus committed transit language. We do think there is a solution there.
Number two, we also agree that it is critically important to be as clear as possible in that this guidance only applies to that 100 foot band area.
Number three, our biggest concern with the language currently on the table is in Policy 7; and specifically as it regards to the consolidation of the TOD and infill sections. Putting the burden of financial assurance on every infill project is basically a non-starter for those smaller projects, especially affordable housing projects that don't have the resources for flood insurance.
And we support the April 12 compromise language that attempts to distinguish between those larger projects near transit that may in fact have the resources and the smaller infill projects. We can discuss whether there is some possibility of distinguishing in a quantitative way. But suffice it to say that the language that is currently on the table will have a disproportionate effect on the smaller projects. And I would like to go back to that, the April 12 language. We think that was a reasonable approach. Thank you very much.
Chair Randolph thanked all the public speakers and moved on to Items 9, 10 and 11.
9. New Business. No new business was discussed.
10. Old Business. No old business was discussed.
11. Adjournment. Upon motion by Commissioner Nelson, seconded by Commissioner Goldzband the meeting adjourned at 5:07 p.m.
Approved, as corrected, at the San Francisco Bay Conservation and Development Commission Meeting of June 2, 2011
R. SEAN RANDOLPH, Chair