Bill WOULD Allow BART To Build NOT To Local Requirements

Article Source: B.A.R.T.

CONCURRENCE IN SENATE AMENDMENTS AB 2923 (Chiu and Grayson)

As Amended August 17, 2018

Majority vote

ASSEMBLY: 42-32 (May 31, 2018) SENATE: 26-13 (August 23, 2018)

Original Committee Reference: L. GOV.

SUMMARY: Requires, until January 1, 2029, cities and counties to adopt the zoning standards in the San Francisco Bay Area Rapid Transit District's (BART) transit-oriented development (TOD) guidelines and establishes a streamlined approval process for certain projects on BART-owned land.

The Senate amendments:

1) Define the following terms:

a) "Eligible TOD project" to mean a TOD project that meets all the following conditions:

i) The project is located on an infill site, as defined in existing law;

ii) The land for the project was not acquired through eminent domain after July 1, 2018;

iii) The land for the project:

• Is owned by BART;
• Forms a contiguous area of at least 0.25 acres;
• Has at least 75% of its area located within one-half mile of an existing or planned BART station entrance; and,
• Is located within an area represented on the BART board;

iv) The project is on land owned by BART on July 1, 2018 if it is within a half mile of a station existing as of July 1, 2018; and,

v) For a planned station, the BART station has been approved by the local jurisdiction with land use authority over that station and CEQA review has been completed for the station.

b) "TOD project" to mean a project on BART land with 50% of the floor area of the project dedicated to residential uses, unless a local specific plan provides for a different amount of residential use on the site.

c) "BART TOD place type" to mean the place type described in Table 1 and Figure 1 of the

BART Transit-Oriented Development Guidelines (2017), as updated by the district.

d) "Floor area ratio" to mean the ratio of gross building area of the development, excluding

structured parking areas, proposed for the project, divided by the total area of the parcel or parcels used by the project, where "gross building area" means the sum of all finished areas of all floors of a building included within the outside faces of its exterior walls.

• "Local jurisdiction" to mean a city, including a charter city, a county, or a city and county.
• "Planned district station" to mean a station that has completed the California
• "Station entrance" to mean the entry point into an enclosed station structure, or, where that point is not clear or does not exist, the station fare gates.

Environmental Quality Act (CEQA) review for which construction is more than 75% funded.

2) Require, notwithstanding any other law, the BART board of directors (board) to adopt TOD

zoning standards for each station that establish minimum local zoning requirements for height, density, parking, and floor area ratio only, that apply to an eligible TOD project by July 1, 2020.

3) Provide that adopted TOD standards establish, for each station, the lowest permissible limit

for height, density, and floor area ratio, and the highest permissible parking minimums and maximums.

4) Set the TOD standards in the 2017 version of BART's TOD guidelines as the minimum

standards, and establishes a maximum height of the greater of either:

• The highest approved height of in nearby areas, as defined; or,
• 150% of the target height in the 2017 BART TOD guidelines.

5) Provide that if BART does not adopt standards for a station by July 1, 2020, the standards in

the 2017 TOD guidelines become the TOD zoning standards until BART adopts its own TOD standards for that station.

6) Establish a minimum floor area ratio of 0.6 times the height designated in the TOD zoning

standards for any stations, if no floor area ratio is designated by BART.

7) Require BART, prior to adopting TOD zoning standards, to:

• Hold a public hearing and conduct outreach to local governments and communities of concern around each station;
• Consult, with each jurisdiction in which a station is located, as well as any relevant infrastructure agencies, and include all of the following during that consultation:

• A review of the housing needs of the jurisdiction;
• A review of the TOD approved and built in the past year in the jurisdiction;
• A review of any TOD projects proposed by the district in the jurisdiction for the past year; and,

iv) A discussion of any obstacles to development of any project proposed by the district.

• Make available draft standards to the public 30 days before a hearing to consider adopting TOD zoning standards; and,
• Adopt standards at a separate hearing after the initial hearing, and approve travel demand management requirements prior to or simultaneously with the adoption of TOD zoning standards.

• Require a city or county to adopt an ordinance that conforms to the BART TOD zoning standards for a station within two years of BART adopting the standards, or by July 1, 2022, if BART has not adopted TOD zoning standards for a station.
• Require BART to make a finding as to whether the local zoning ordinance is consistent with the TOD zoning standards. Specify that the local zoning remains in place unless the BART board determines that it is inconsistent with BART's TOD zoning standards. However, if the local zoning standards are inconsistent after July 1, 2022, the TOD zoning standards become the local zoning for affected parcels.
• Allow a city or county to update its zoning to comply with TOD zoning standards until such time that a BART TOD developer enters into the development process and requires BART to take a city or county's progress in adopting zoning standards under consideration in negotiating an agreement with a prospective developer, if local zoning is in the CEQA review process.
• Provide that if local zoning is within 10% of the standards specified in BART's 2017 TOD guidelines and specified floor area ratios on July 1, 2018, the local jurisdiction shall be exempt from BART TOD zoning standards.
• Exclude stations without developable land from the TOD zoning standards.
• Require the TOD zoning standards adopted by the board for each station to reflect the diversity of the different communities served by the district's stations.
• Provide that nothing in this bill affects the application of density bonus.
• Specify that the adoption of TOD zoning standards is subject to CEQA review, and that BART is the lead agency for that review.
• Provide that any subsequent rezoning to conform to the TOD zoning standards shall incorporate the environmental review document adopted by BART, and prohibits a local agency from preparing an environmental impact report or mitigated negative declaration for a rezoning or for an eligible TOD project unless the rezoning or TOD project creates a significant impact on the environment that was not previously analyzed, mitigated, or avoided.
• Provide that TOD zoning standards are the controlling standards where there are inconsistencies with other local development regulations, and provides that TOD zoning standards in force as a result of this bill are the same as local zoning for all purposes.

18) Establish certain parking requirements for auto dependent stations and imposes certain constraints on local parking requirements.

19) Allow an eligible TOD project to qualify for streamlined ministerial approval pursuant to existing law, if it meets all of the following conditions:

• The project's height is up to one story, or 15 feet, taller than the highest approved height for mixed use or residential use within a half mile of a BART station entrance;
• The project has a floor area ratio equal to or less than 0.6 times the height in (a); and,
• If greater than a) or b), above, local zoning standards.

20) Exclude from streamlining projects that have a specific, adverse impact that cannot be mitigated.

21) Allow a project eligible for streamlining to apply for a density bonus, as provided in existing law, and to retain streamlining even if it exceeds the height and floor area ratio specified in this bill.

22) Require BART to ensure that locally adopted design guidelines for projects eligible for streamlining are incorporated into an agreement with the developer, to the extent that it does not affect the standards in this bill.

23) Authorize a local jurisdiction to exercise full design review and conditional permitting for projects that do not qualify for streamlining.

24) Provide a vested right for two years to an eligible TOD project that has entered into an exclusive negotiating agreement.

25) Require BART to take specified steps to avoid the loss of affordable housing units and prevent displacement of tenants, including:

• Require that any eligible TOD project that involves the demolition of specified housing affordable to moderate or lower income be subject to a policy that replaces those units within the TOD project and subjects the replacement units to a recorded affordability restriction;
• Prohibit the demolition of any unit occupied by lower income tenants unless the district or the TOD developer has offered, in writing , the tenant a commensurate or better replacement affordable housing unit that is available for occupancy by the displaced tenant within a half-mile of the same station at rent that does not exceed the tenants previous rent;
• Prohibit the occupation of new units by new tenants until displaced tenants are provided the opportunity to relocate to those units;
• Provide relocation assistance consistent with existing law; and,
• Develop a strategy to increase affordable housing and deliver housing for essential workers in and around TOD projects, in coordination with local jurisdictions.

• Require an eligible TOD project to restrict at least 20% of the units for occupancy at affordable rates by lower income households, or a higher percentage if required by a local ordinance. Thirty percent of housing units must be affordable across all BART-owned land.
• Require a project to comply with BART labor standards and labor standards in existing law for streamlined projects.
• Require BART to report before July 1, 2027, on whether the provisions of the bill have increased housing development, including specified metrics.
• Sunset this bill's provisions, excluding the vested right, on January 1, 2029.
• Include findings and declarations to support the purposes of the bill and that state the unique nature of BART as a transit district with an elected board.

AS PASSED BY THE ASSEMBLY, this bill:

• Allowed, notwithstanding any other law, the BART board of directors (board) to adopt transit-oriented development (TOD) zoning standards by a majority vote at a duly noticed public meeting that establish minimum local zoning requirements for BART-owned land that is located on contiguous parcels larger than 0.25 acres, within one-half mile of an existing or planned BART station entrance, in areas having representation on the BART board.
• Required zoning standards published in the current BART Guidelines to serve as the baseline for BART TOD zoning. Specifies that approved TOD zoning standards shall establish the lowest permissible height limits, lowest permissible density limits, and the highest
• Required the board to establish and include the lowest permissible floor-area-ratio limits for each TOD place type, in approving the TOD zoning standards.
• Required the TOD zoning standards to be approved by the board by April 1, 2019, and allows them to be amended by the board thereafter, as specified. Specifies that if the board fails to approve new guidelines by April 1, 2019, the existing Table 1 of BART TOD GUIDELINES (2017) shall serve as the minimum local zoning requirements for local jurisdictions, with the Transit Oriented Place Types indicated in Figure 1 of the BART TOD Guidelines (2017).
• Required the approval of, and amendments to, the TOD zoning standards, to comply with all of the following:

permissible parking maximums, as established by Table 1 and Figure 1 of BART TOD Guidelines (2017).

• The board shall hold a public hearing to receive public comment on the proposed TOD zoning standards or proposed changes to the TOD zoning standards. Requires BART to conduct direct outreach to communities of concern;
• BART shall provide public notice and make the draft guidelines available to the public not less than 30 days before a public hearing of the board to consider the TOD zoning standards; and,

c) The board shall approve or reject any proposed TOD zoning standards at a publicly noticed meeting of the board not less than 30 days following the original public hearing.

• Required, before or at the same time as approving TOD zoning standards, the board to approve travel demand management requirements for TOD projects on district-owned real property.
• Required, where local zoning is inconsistent with the TOD zoning standards, the local jurisdiction to adopt an ordinance that approves the application of the TOD zoning standards within two years of the date that the TOD zoning standards were approved by the board.
• Required the local zoning ordinance to conform to the TOD zoning standards without the application of any bonuses or waivers allowable under any state or local density bonus provisions.
• Required the board to make a finding as to whether the local zoning ordinance is consistent with the TOD zoning standards. Specifies that the local zoning shall remain in place unless the board determines that it is inconsistent with TOD zoning standards.
• Required, if, according to the board's finding, the local zoning ordinance remains inconsistent with the TOD zoning standards after the two-year period specified in 7), above, the TOD zoning standards to become the local zoning standards for any BART-owned land within one-half mile of any existing or planned BART station entrance in areas represented on the board. Allows a jurisdiction to update zoning to comply with TOD zoning standards until such time that a BART TOD developer enters into the development process.
• Specified that the board's approval of TOD zoning standards and local zoning standards shall be subject to the California Environmental Quality Act (CEQA review). Requires the board to serve as the lead agency for CEQA review.
• Required any subsequent CEQA review of rezoning to conform with TOD zoning standards, and of TOD projects proposed on BART-owned land to incorporate the environmental impact report (EIR) certified for the TOD zoning standards, as specified. Specifies that a public agency need not prepare an EIR or mitigated negative declaration for a project involving rezoning to implement TOD zoning standards subsequent to BART's certification of an EIR for approval of TOD zoning standards unless the public agency finds, based on substantial evidence, that the rezoning creates a significant effect on the environment that was not analyzed and mitigated or avoided in the prior EIR.
• Allowed a TOD development proponent to submit an application for a development that is subject to the streamlined, ministerial approval process not subject to a conditional use permit if the development satisfies the objective planning standards specified in SB 35 (Wiener), Chapter 366, Statutes of 2017, that are consistent with the BART TOD zoning standards. Specifies that the streamlining provisions do not apply to a development located in a jurisdiction where the market rate and affordable housing obligations in the regional housing needs assessment (RHNA) have been met.
• Required the board to ensure that any otherwise applicable local design review guidelines are included in a development agreement with a TOD developer.

15) Required a TOD developer to adhere to any applicable local design guidelines insofar as those guidelines do not prohibit the minimum density allowances required by the TOD zoning standards.

16) Provided that in the event that TOD zoning standards, objective planning standards, general plan, or design review standards are mutually inconsistent, that the TOD zoning standards shall be the controlling standards.

17) Required, to the extent that the zoning standards do not resolve inconsistencies, that the general plan be the controlling standard.

18) Allowed the board to waive any requirement that it finds to be inconsistent with the Government Code Section 65913.4, which is the section of SB 35 (Wiener) that allows a development proponent to submit an application for a development that is subject to the streamlined, ministerial approval process if specified objective planning standards are met.

19) Required the board to take specified actions to avoid the loss of affordable housing units and to prevent the direct displacement of tenants, as specified.

20) Required a TOD project to do both of the following:

• Include at least a 20% minimum of the affordable residential housing units for very low-, low-, and moderate-income households and subject to a recorded affordability restriction for at least 55 years with a priority on residential units for very low-, low-, and moderate-income households; and,
• Comply with the labor requirements of Government Code Section 65913.14 (SB 35) and any other applicable BART labor policies.

21) Allowed the board to identify specific TOD projects that are in the approval process with a local jurisdiction on or before imposition of the TOD zoning standards adopted pursuant to 1), through 3), above, that are proceeding with local zoning authority and entitlement pursuant to existing local zoning authority.

22) Required reimbursement to local agencies to be made, as specified, if the Commission on State Mandates determines that this act contains costs mandated by law.

FISCAL EFFECT: According to the Senate Appropriations Committee:

• Unknown, potentially significant state-mandated local costs for BART to adopt TOD zoning standards. Staff notes, however, that the bill allows BART to use its 2017 TOD Guidelines if it fails to adopt new standards by July 1, 2020. The Commission on State Mandates may determine that the bill does not impose a mandate on BART, since it functionally allows them to use existing guidelines in lieu of adopting new zoning standards. In addition, BART has general fare-setting authority. The Commission would ultimately determine whether any BART costs are reimbursable, to the extent a claim is filed. (General Fund)
• Unknown, likely significant state-mandated local costs for jurisdictions in the BART service area to adopt local zoning ordinances that conform to the district's TOD zoning standards. To the extent the Commission on State Mandates determines these costs are reimbursable,

there could be General Fund impacts. Staff notes, however, that cities and counties have general authority to adjust planning and permitting fees as necessary to cover administrative costs associated with new planning mandates.

COMMENTS:

• Author's Statement. According to the author, "To play its part in fulfilling state and regional goals, BART recently passed a progressive and ambitious TOD policy. BART committed itself to fully building out the land it owns around its stations by 2040 to produce over 20,000 new units of housing, of which 7,000 will be affordable, and 4,500,000 sq. ft. of office and commercial space, including child care and educational facilities. The success of BART's TOD policy is essential to meeting the Bay Area's housing needs, reducing the Bay Area's greenhouse gas emissions and criteria pollutants, reducing crippling congestion on Bay Area roads, and providing much needed affordable housing to low-income residents with direct, reliable, and affordable transportation connections to jobs and services.
• Constitutional Land Use and Zoning Powers for Cities and Counties. The California Constitution, pursuant to Article XI, Section 7, states that a city or county may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws. This power is often referred to as the "police power" and the courts have held that "It is from this fundamental power that local governments derive their authority to regulate land through planning, zoning, and building ordinances, thereby protecting public health, safety and welfare."
• Override of Police Powers Delegated to Cities and Counties. According to the League of California Cities, in opposition, "Authorizing a transit agency to regulate density, height and parking requirements transfers this essential local government function from their hands to a single special district. Bestowing land use power onto a transit agency is contrary to existing law and may violate Article XI, Section 11 of the State Constitution. In In re Werner (1900)

"Unfortunately, BART cannot fully deliver on some of its most promising TOD opportunities. Historically, TOD projects have taken too long - often more than a decade - with jurisdictions demanding less housing and too much parking for transit adjacent development. These factors have increased project costs while reducing project benefits and affordability. As a result, BART has not proposed TOD on many of its opportunity sites.

"AB 2923 will help expedite the production of well designed, mixed-use development adjacent to transit. TOD projects will in turn increase transit ridership, reduce congestion and greenhouse gas outputs, and sustainably accommodate new growth."

This bill is co-sponsored by the Non-Profit Housing Association of Northern California and the State Building and Construction Trades Council.

The California Constitution authorizes both general law and charter cities to: a) make and enforce all local laws and regulations not in conflict with general state laws; b) establish, purchase, and operate public works and utilities or franchise to do so; and, c) be free from state legislation delegating to a private person or body control over city property, funds, tax levies, and municipal functions. Whether a charter city may act independent of state general law in a particular domain depends upon a court's determination of whether it is a municipal affair or a matter of statewide concern.

129 Cal.567., the court struck down a state statute which granted a sanitary district the power 'to make and enforce all necessary and proper regulations from suppressing disorderly and disreputable resorts and houses of ill fame within the district and to determine the qualifications of persons authorized to sell alcohol.' The court held that the powers granted to the sanitary district violated Article XI, section 11 because the 'police power' must be exercised locally by cities and counties only (as provided by the Constitution)."

• Establishes Precedent for Future Diminishing of Local Land Use Planning. According to the American Planning Association, California Chapter, "APA California opposes altering state policy to replace local land use planning by allowing BART to zone its own property. This bill sets a precedent for other entities to request the same authority to zone their own properties however they wish. APA California believes the approach in AB 2923 will set a troubling precedent for further diminishing of local land use planning in future legislation."
• Arguments in Support. Supporters argue that the bill could potentially facilitate
• Arguments in Opposition. Opponents argue that the bill would override and undermine local planning efforts by cities and counties, and sets precedent for other special districts to ask for the same authority in the future. Opponents also point out that this bill would serve only to further BART's 'mission creep' by giving BART unchecked authority to greatly expedite development around stations instead of focusing on rebuilding the transit system.

deployment of hundreds of new homes – both market-rate and affordable – precisely where they are needed, near major rail transit. Supporters also note that transit-oriented projects are notoriously contentious and approvals can take up to a decade, hindering development.

Analysis Prepared by: Debbie Michel / L. GOV. / (916) 319-3958 FN: 0004566

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Robert Riechel

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