Development review guidelines meant to cut air pollution, the first of their kind when approved in 2010, are in limbo after a judge ruled their adoption by the region's air board was flawed.
One building industry leader predicted the ruling would force a rewrite of land-use guidelines that he said delay and add costs to "infill" development of homes and businesses from San Jose to Oakland and Walnut Creek.
"The air district is going to have to rescind its entire action," said Paul Campos, an attorney for the California Building Industry Association, which sued over the guidelines.
Bay Area air quality regulators reacted cautiously, saying the future of the guidelines isn't clear because its adoption was overturned for improper procedure, not the content.
"We believe good land-use decisions are important to protecting public health from the effects of air pollution," said Jack Broadbent, executive director of the Bay Area Air Quality Management District.
In a preliminary verbal ruling Monday, Judge Frank Roesch of Alameda County Superior Court said the nine-county air board should have done an environmental review of the potential impacts of the guidelines before adopting them. The district board voted 14-0 in June 2010 to adopt the land-use guidelines for assessing developments.
The benchmarks are a series of numerical thresholds for cities and counties to rely on in determining whether pollution from a new housing
Pollution from cars traveling to a project count in the calculation.
Projects generating more than 1,100 metric tons a year of greenhouse gases would trigger a review.
Studies also would be required on housing applications if residents of a new development would be exposed to higher cancer risks from a freeway, road or industry within 1,000 feet.
Lawyers for the homebuilders argued it's improper to burden a developer with studies on reducing air pollution from its neighbors.
While the builders group doesn't object to pollution limits, Campos said the air board violated state environmental law by failing to study the impacts of its action.
"It's ironic that an environmental protection agency is blowing off the state's environmental quality act," he said.
Air district officials say they did not believe a formal environmental review was required because the guidelines are advisory for cities and counties.
"In general, this is guidance, not a regulation," said Henry Hilken, the air district's manager of planning and research.
Air district officials said they will consider whether or not to appeal after the judge's ruling is issued in writing later this month.
Campos said an internal air district survey shows many Bay Area cities are concerned that the development guidelines could hamper Bay Area infill development.
Broadbent said it's not the district's intent to hamper infill development but to encourage it by providing more clarity for city and county planners in evaluating development proposals.
Contact Denis Cuff at 925-943-8267. Follow him at Twitter.com/deniscuff.