Lawsuit Against the Association of Bay Area Governments (ABAG)

 

BACKGROUND

The plot to transform the San Francisco Bay Area into a political “Region” is largely unknown by the residents living there and overwhelmingly opposed by those who do know. The global boiler plate program called One Bay Area (OBA) or Plan Bay Area will roll out across the nation on a grand scale. OBA involves more than $250,000,000,000 (over a quarter of a trillion dollars). The plan destroys rural and suburban lifestyles and transforms areas into dense mega-cities where people are assessed, monitored and controlled. Sound extreme?

Regional government is promulgated through Councils of Governments (COGs) and serves to neuter local government through a federalized system of carrots and sticks. COGs are designed to be the primary engine in the United States to advance Agenda 21 at the local level. The Plan for the San Francisco Bay Area is the prototype of what COGs throughout the country will commit to if the Plan is implemented in the Bay Area. Over time the Plan abolishes private property as a system of public private partnerships assume control of our economic future.

Michael Shaw of Freedom Advocates and Rosa Koire of The Post Sustainability Institute are spearheading a lawsuit to block the implementation of Plan Bay Area, an agenda created by the Association of Bay Area Governments (ABAG). The lawsuit challenges the Plan on the basis of Constitutional and/or statutory violations inherent in the Plan. These include state and federal equal protection violations, and violation of the state constitutional guarantee that each city and county has autonomy from coercive state control and regionalist philosophy. Article XI of the California State Constitution guarantees city and county autonomy, and the 14th Amendment of the Federal Constitution guarantees equal protection. These guarantees are violated by the restructure of government advancing through ABAG’s Plan Bay Area.

 

CURRENT STATUS

In October 2015, the Plaintiffs/Appellants filed the Appeal Opening Brief in the One Bay Area/Plan Bay Area lawsuit against the Association of Bay Area Governments (ABAG).  The Reply Brief, the third and final document in the One Bay Area/Plan Bay Area Lawsuit Appeal was filed in the California Appellate Court in February 2016.  The Court has all of the briefs for the Appeal, and all other lawsuits against ABAG and Plan Bay Area have been settled.  In 2 years following complete briefing, the Court has taken no action and no ruling has been issued in the Appeal.  In addition, ABAG has requested that the Court abandon the litigation.  The Court has thus far ignored that request, as it should.  The nonsensical ruling of the Trial Court (see details below) has created a mess for the Appellate Court.  The lawsuit is stymied in the State Court and appears to be going nowhere.  The real question is, is the Appellate Court going to protect the Constitutional form of government in California?

The structure of government is the issue raised by our lawsuit.  The Court’s facing a tough decision, because to do the right thing, it has to neutralize AB 32 and SB 375, and neutralize ABAG — the COG creating the prototype designed to globalize America through unelected and unaccountable councils.  The issue raised in our lawsuit is the issue of the day for the state of California — it is the most important political issue ever raised in the state of California.

When the Appellate Court completes its job, this case is most likely headed to the Supreme Court.

 

Plan Bay Area Implementation

Implementation of One Bay Area/Plan Bay Area is not rolling forward very swiftly.  Some cities have taken no action — other than rezoning in order to receive payments from ABAG.  But in many of these cities, no steps have been taken to implement the revised zoning, indicating that these cities are not supportive of these changes.  Some cities are acting as if they won’t do it, other cities are intentionally not doing it.  Because there is no clear direction from the state, cities are in a bind.  Plan Bay Area implementation has been stymied.

Evidencing the fact that ABAG implementation of Plan Bay Area has somewhat faltered is an article in the Mountain View Voice.  Mountain View is fully integrating Plan Bay Area, but many Bay Area cities are not.

Excerpts from Mountain View Voice article:

Plan Bay Area’s detachment from any mandatory land use policies wasn’t enough to assuage concerns from Brisbane city officials, who showed up in full force at the July 26 meeting with frustrated demands to revoke the housing projections for the small city south of San Francisco. Plan Bay Area projects that a massive 684-acre baylands site located in Brisbane could accommodate 4,400 new homes, but city officials say it’s hardly a done deal and simply one proposal by the developer who owns the property.

“On the one hand, we’re told that Plan Bay Area doesn’t dictate local land use, yet on the other hand, it appears that the city could be financially punished for exercising our local land use in a way that displeases MTC,” Davis said.

Brisbane’s Mayor Pro Tem Clarke Conway called the growth expectations for the city “ludicrous,” and demanded the joint agency’s executive committee members delay a vote on Plan Bay Area and its environmental impact report until after the city’s decision on the baylands project in late August.

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Scott Lane, a member of MTC’s policy advisory council, said he fully embraces Plan Bay Area and understands the Bay Area is already be something close to 300,000 housing units behind on new demand, but said putting such a heavy burden on one city amounts to “utter insanity” that puts MTC at risk of a lawsuit.

“This is like telling a homeowner how to develop their property,” he said. “I have been for years saying MTC and ABAG need to have more jurisdictional authority and power, (but) this is an abuse of power, there’s no other way to say it. Every city needs to be the master of their own domain.”

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Palo Alto’s Scharff said he believes the fears over Bay Area’s growth projections are “misguided,” and that the real threats to local control reside in Sacramento. The state legislature has proposed close to 130 different bills aimed at addressing the state’s housing shortage, and some aim to limit the ability of local governments to slow down or block approval of housing developments.

 

Read the full article here.

 

Summary of Trial Court Litigation

In July 2014, the land use law firm of Kassouni Law filed the opening brief in the important case challenging the Plan Bay Area’s Sustainable Communities Strategy adopted by the Metropolitan Transportation Commission (MTC) and the Association of Bay Area Governments (ABAG).  Kassouni Law represents Michael Shaw of Freedom Advocates, Rosa Koire, and the Post-Sustainability Institute.  MTC and ABAG were directed by law to craft a plan to reduce greenhouse gas emissions in the state to 1990 levels by the year 2025.  However, the end result is a 150 page manifesto of social engineering run amok which will fail to hit its greenhouse gas emissions target.

In November 2014, Alameda County Superior Court Judge Evelio Grillo issued a tentative ruling denying Petitioners’ request for the issuance of a writ of mandate halting implementation of the One Bay Area Plan in the matter of the Association of Bay Area Governments’ (ABAG) restructure of local government.  A hearing was held shortly thereafter to discuss the tentative ruling.  Petitioners’ counsel focused on the statutory requirement that the Sustainable Communities Strategy be “feasible.”  The definition of feasible includes the requirement that greenhouse gas reduction be achieved within a reasonable period of time.  ABAG offers no timetable for a feasible plan designed to transform the Bay Area in accordance with the “Strategies” law itself.

Following the hearing, in January 2015, Alameda County Superior Court Judge Evelio Grillo issued his final ruling.  Judge Grillo changed his tentative ruling based on the arguments presented by the Petitioners in the November hearing.  He sidestepped the feasibility issue, and he did not address the legality of the COG.  Ultimately the Trial Court Judge ruled against the Plaintiffs in the war over protecting cities and counties from a transformation of local government, but for different reasons.  Read the Final Ruling here.

We lost at trial, as the Trial Court gave the go-ahead to the remaking of the structure of the California government.  Both the Trial Court and the State Legislature have had a hand in the remake of the California government.  The Legislature is remaking the government and the Trial Court is authorizing it, without any Constitutional authority or public awareness.  The Bay Area cities have been lured to remake their zoning ordinances in order to qualify for receipt of a share of Plan Bay Area’s $16 billion ‘start up’ fund, which has been distributed by ABAG to 100 cities in the Bay Area.  The One Bay Area Plan intends for the San Francisco Bay Area to become the first American City-State (see video here).  As the Bay Area goes, so will Los Angeles and then San Diego.

 

LITIGATION DOCUMENTS

 

APPEAL LITIGATION

Appeal Briefs:

Opening Brief – October 9, 2015

On October 9, 2015, the Plaintiffs/Appellants filed the Appeal Opening Brief in the One Bay Area/Plan Bay Area lawsuit against the Association of Bay Area Governments (ABAG), thanks to the financial contributions and pledges of funds necessary to enable this litigation to continue.

 

Response Brief from ABAG – November 23, 2015

ABAG’s response to the Appeal Opening Brief was received on November 23, 2015.

Read the Respondents’ Request for Judicial Notice here.  (The California Air Resources Board’s (CARB) assessment of the factors they believe necessitate a One Bay Area Plan.)

 

Reply Brief – February 16, 2016

The Reply Brief, the third and final document in the One Bay Area/Plan Bay Area Lawsuit Appeal was filed in the California Appellate Court on February 16, 2016. The Brief lays out several powerful arguments that dismantle ABAG’s response and demonstrate that Plan Bay Area is in fact, infeasible. In conclusion, we request that the trial court judgment be reversed, and that a peremptory writ of mandate be issued directing ABAG to rescind their approval of Plan Bay Area.

Below are two key points from the Reply Brief:

  1. The mandates of S.B. 375 are clear and unambiguous:
    California S.B. 375 unequivocally requires ABAG to adopt a plan that “will reduce the greenhouse gas emissions from automobiles and light trucks….” The Legislative mandate of S.B. 375 is plain and unambiguous, yet the trial court effectively rewrote this Legislative mandate to require only that the Plan can be reasonably expected to reduce greenhouse gas emissions to CARB’s (California Air Resources Board) targets. This reinterpretation of the direct language of S.B. 375 allows something closer to what ABAG has actually adopted. However, ABAG tacitly admits that Plan Bay Area will not meet the reduction targets. ABAG engaged the services of an independent consultant, Economic & Planning Services, Inc. (EPS), to assess the feasibility of Plan Bay Area. According to the Feasibility Report produced by EPS, Plan Bay area falls well short of the statutorily required CARB greenhouse gas emission targets.
  2. The Court is not in the business of fortune telling:
    The myriad political, legislative and financing assumptions built into Plan Bay Area render it infeasible as the mechanism to achieve CARB’s greenhouse gas emission reduction targets. Plan Bay Area rests on assumptions about future legislative actions and cannot succeed without seismic shifts in California’s political and economic landscape, including the repeal of Proposition 13. [California Proposition 13 is an amendment to the California Constitution enacted in 1978 that reduced property tax rates and restricted annual increases of the assessed value of real property.] The EPS Feasibility Report commissioned by ABAG documents that Plan Bay Area cannot achieve the emissions reduction required by S.B. 375 unless redevelopment agencies or their equivalent are reinstituted; Proposition 13 is repealed or substantially weakened; and new statewide infrastructure financing is provided. ABAG fails to acknowledge that, as is highlighted in the Feasibility Report, the existence of Proposition 13 is not just an obstacle to the Plan’s achievement of its objectives, it is a “major” obstacle. Any assertion that the Plan is “likely” to achieve its objectives, or “can reasonably be expected” to do so rests on a major upheaval in California’s long-standing property tax structure occurring in the foreseeable future. ABAG provides no evidence to support their assumption that the “major obstacle” presented by Proposition 13 will go away, and thus fail to demonstrate that Plan Bay Area will achieve the objectives required for compliance with S.B. 375.

The Plaintiffs/Appellants evaluate 5 other reasons why the Appellate Court should reverse the Trial Court’s ruling. 

 

 

TRIAL COURT LITIGATION

Trial Court Ruling

In a result oriented decision, Alameda County Superior Court Judge Evelio Grillo ruled against the Plaintiffs in the war over protecting Cities and Counties from a transformation of local government (One Bay Area). The new form of government in the San Francisco Bay Area is run by ABAG (Association of Bay Area Governments). ABAG has jammed a $300 billion national taxpayers funding program that extorts all 101 cities and 9 counties in the Bay Area. ABAG is a COG (Council of Governments). COGs are directed and funded by the federal government and are extra-Constitutional. Total transformation is the Agenda – including massive stack and pack housing on 3% of the area’s land mass, abolition of private property, public transportation in replacement of private auto use and attacks on rural housing – pure Agenda 21 and “justified” on the basis of ‘climate change.’ A convenient excuse for restructuring government! As the Bay Area goes, so will Los Angeles and then San Diego. The Bay Area cities have been lured to remake their zoning ordinances in order to qualify for receipt of a share of One Bay Area’s $16 billion ‘start up’ fund to be distributed soon by ABAG, unless there is Court intervention.

The One Bay Area Plan intends for the San Francisco Bay Area to become the first American City-State (see video here). Newspapers in the Bay Area essentially do not report on the transformation. The public is unaware. COGs came to California by decree of then Governor Ronald Reagan, who declared as justification: “The era of horse and buggy government is over.” Liberal politicians + Conservative politicians = Globalists. The real battle is Globalism vs. America. Where do you stand?

 

Tentative Ruling, California Superior Court Hearing, and Supplemental Briefing

On Friday November 7, 2014, Alameda County Superior Court Judge Evelio Grillo issued a tentative ruling denying Petitioners’ request for the issuance of a writ of mandate halting implementation of the One Bay Area Plan in the matter of the Association of Bay Area Governments’ (ABAG) restructure of local government.

On Monday November 10, 2014, a hearing was held in the Superior Court of the State of California (Alameda County) to discuss this tentative ruling. Petitioners’ counsel focused on the statutory requirement that the Sustainable Communities Strategy be “feasible.” The definition of feasible includes the requirement that greenhouse gas reduction be achieved within a reasonable period of time. In its briefing, ABAG never presented a feasible plan nor addressed the issue of the timing for their “Strategies” implementation. Currently, ABAG merely concludes the project is feasible despite the fact that their planning consultant offered no evidence to support ABAG’s conclusion. ABAG recites a number of new laws will have to be passed before the Plan can be fully implemented. This list includes gutting Proposition 13. Is that feasible? ABAG offers no timetable for a feasible plan designed to transform the Bay Area in accordance with the “Strategies” law itself.

Further, consider:  ABAG’s judicially relevant assertion that their funding of One Bay Area (OBA) is 5% of federal funding issued to this geographic area. This perspective misleads the relevant fact that ABAG funding of OBA totals 50% off all discretionary federal payments to this area! As a consequence, Cities and Counties are coerced into participation by the force of these lost dollars.

There are more issues raised on the record linked below.  The Court asked Mr. Kassouni to further brief the issues presented that day (Read Brief here).  It was an interesting Hearing!

Read:

 

Trial Court Briefs:

 

Amended Complaint Brief – March 6, 2014

Michael Shaw of Freedom Advocates, Rosa Koire, and The Post Sustainability Institute file Complaint seeking to negate ABAG’s One Bay Area Plan.

 

Opening Brief – July 15, 2014

Kassouni Law files opening brief in case challenging Plan Bay Area’s Sustainable Communities Strategy

On July 15, 2014, the land use law firm of Kassouni Law filed the opening brief in an important case challenging the Plan Bay Area’s Sustainable Communities Strategy adopted by the Metropolitan Transportation Commission (MTC) and the Association of Bay Area Governments (ABAG).  Kassouni Law represents Michael Shaw of Freedom Advocates, Rosa Koire, and the Post-Sustainability Institute. MTC and ABAG were directed by law to craft a plan to reduce greenhouse gas emissions in the state to 1990 levels by the year 2025. However, the end result is a 150 page manifesto of social engineering run amok which will fail to hit its greenhouse gas emissions target.

The plan over time will drastically reduce if not outright ban the development of many vacant parcels in the Bay Area, thereby forcing residents to work and live in small, high density Priority Development Areas (PDAs).  Not only that, important environmental protections provided by the California Environmental Quality Act (CEQA) will be eliminated for favored developers who build in these PDAs, creating serious equal protection and environmental concerns. Federal transportation funds administered by MTC will be withheld from cities and counties unless they agree to the draconian land use restrictions imposed, bribery in common parlance.

An independent study prepared for the government by Economic Planning Systems, Inc. (EPS.) has concluded the Plan is infeasible, as it relies on a number of legislative and Constitutional changes, including the repeal of Proposition 13, which has helped keep property taxes in check for 40 years, and which has also restricted the state’s ability to raise taxes without a 2/3 super majority vote.

Even if the plan is adopted, any positive effects on the environment will be virtually nil according to studies performed by the Environmental Protection Agency. Further, given the CEQA modification for PDAs, the impact on the environment may be negative.

It is hoped that the Alameda County Superior Court, where the case has been filed, will see through the charade of sustainable development and restore common sense for the people of California.

Read the opening brief in its entirety here.

The Los Angeles and Sacramento land use lawyers at Kassouni Law can be reached at (877) 770-7379.

 

Response Brief from ABAG – August 29, 2014

ABAG’s response to our Opening Brief was received on Friday, August 29, 2014. The government’s response demonstrates bureaucratic overload.

 

Reply Brief – October 20, 2014

Petitioners’ Reply: How this bureaucracy has demonstrated its excess.

 

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