AB 2923: Mission Creep Forges Ahead

California Assembly Bill 2923 BART Transit Oriented Development, authored by David Chiu (San Francisco) and Timothy Grayson (Concord) and now in committee process, stands as a good example of mission creep. 

Were this bill among only a few deserving such label, one would have small cause for concern.  However, the list of bills and measures replacing city and county land use rules with state rules keeps growing.  Way back in 2008, California Senate Bill 375 declared green house gas emissions a threat that needed to be dealt with through land use policies – bunch up housing, prevent sprawl, and decrease automobile use. Since then legislators have churned out innumerable transportation, housing, and climate change bills that keep growing in scope and forcefulness:  mission creep.

Mission creep is the expansion of a project or mission beyond its original goals, often after initial successes. Mission creep is usually considered undesirable due to the dangerous path of each success breeding more ambitious attempts, stopping only when a final, often catastrophic, failure occurs. The term was originally applied exclusively to military operations, but has recently been applied to many different fields. Wikipedia

The Scope and Forcefulness of AB 2923

Here is what AB 2923 says it does:  “Requires the San Francisco Bay Area Rapid Transit District (BART) to adopt transit-oriented development (TOD) zoning standards on specified parcels of land it owns, and requires affected cities and counties to update zoning to be consistent with BART’s zoning standards within two years.”  

More specifically, the bill states among several of its clauses,

* Requires, 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.

* Requires 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.

* Requires the board to make a finding as to whether the local zoning ordinance is consistent with the TOD zoning standards.

In other words, you will have transit oriented development in your neighborhood whether you like it or not.

How Deep Does AB 2923 Go?

The bill authors' comments as quoted on the bill's Analysis, Assembly Committee on Local Government:

* 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.

* 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.

The Committee's own comments contained in its Analysis, verbatim:

* BART is also authorized to use eminent domain to acquire property, and can also dispose of property when it is in the best interest of the transit system… and hold and enjoy, real and personal property of every kind within or without the district that is necessary for transit-oriented joint development projects on property within ½ mile from the external boundaries of a BART facility to use for TOD.

* TOD projects on BART land will meet a minimum net residential density standard of 75 units per acre, reduce auto use by lowering parking requirements below one space per unit on average and 1.6 spaces per 1,000 square feet of office space, and strive to provide incentives to take transit, bike and walk.

Roadblocks expressed in the Analysis:

* 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 (special districts do not have land use authority). This power is often referred to as the ‘police power…’ One way that cities and counties use this authority is through zoning…

* Cities with voter-approved charters have additional home rule authority over their municipal affairs…  The provisions of a city charter and ordinances adopted by a charter city prevail over general state law in areas that a court determines are municipal affairs.

* Government Code 53096 contains provisions that allow the board of a local agency, by vote of four-fifths of its members, and in spite of the provisions above, to render a city or county zoning ordinance inapplicable to a proposed use of property if the local agency at a noticed public hearing determines by resolution that there is no feasible alternative to its proposal… In this manner, it may be that BART has the authority to exempt itself from local zoning by the affected city or county, but only for its own facilities, and not for private projects like TOD mixed-use developments.

And suggestions how to overcome those roadblocks, again all verbatim:

* Override of Police Powers Delegated to Cities and Counties

* Establishes Precedent for Future Diminishing of Local Land Use Planning.

* Charter cities enjoy supremacy over their municipal affairs. This bill does not contain any provisions declaring that the contents of the bill are a 'statewide affair' – which would then apply the requirements of the bill to charter cities in addition to all general law cities.

* The Committee may wish to ask the author about his intent to include charter cities in the bill. The Committee may also wish to note that while the Legislature can declare its intent to apply provisions of a bill to charter cities, the true determination of whether a specific area is a municipal affair or a matter of statewide concern will be determined solely by the courts.

BART position as contained in the Analysis:

* BART has a ‘Neutral’ position on the bill, and notes that the bill ‘could benefit BART’s TOD program by accelerating the rezoning of sites for residential and mixed-use development…however, this approach this bill takes poses a shift in the working relationship between BART and its local jurisdictions.’

Quote from the Analysis' section, Why BART-owned parcels only?

* The bill deals specifically with parcels of land that BART owns, near existing BART stations. The Committee may wish to consider why increasing density in this manner should only occur around BART stations, as opposed to parcels that are NOT owned by BART that are near existing BART stations.

Conclusion

According to the bill Analysis by the Assembly Committee on Local Government, the affected parcels of BART-owned land are located in the following cities:

Charter Cities:  Berkeley, El Centro, Hayward, Oakland, San Francisco (City and County of), and San Leandro.

General Law Cities:  Fremont, Pleasanton, Dublin, Antioch, Pittsburg, Lafayette, Concord, Union City, and parcels in Alameda County.

So, California legislators have proposed a bill they know infringes on cities’ police powers and charter cities’ home rule authority, but are ready not only to override those constitutional rights, but also to expand the mission of the bill beyond BART-owned land.  Mission creep at its best.

Read More

Read More:  The basics on BART Transit Oriented Development in our article Meet Your New Landlord: Bay Area Rapid Transit. 

TOD Pleasant Hill/Contra Costa

Pictured:  Pleasant Hill/Contra Costa Transit Center TOD.  The first phase of this project is completed, with more to come. 

An obvious challenge:  During peak hours, BART cars are crowded, yet a considerable number of additional riders should be expected with expansion of Transit Villages.  State legislators and the BART Board are counting on hoped-for future sources of sufficient revenue to fund fleet growth.