AB 2923: BART transit-oriented housing legislation

Much to the chagrin of public officials in whose jurisdictions BART stations exist and who view the legislation as continued erosion of local zoning control, Assembly Bill 2923, approved by the governor on Sept. 30, 2018, requires the BART Board of Directors to adopt new transit-oriented development (TOD) zoning standards for each station. The legislation applies to BART parking lots and vacant BART-owned land and aims to simplify the process by which BART can develop land it owns. The TOD standards, which are only applicable to an eligible TOD project as defined, would establish minimum local zoning requirements for height, density, parking, and floor area ratio only.

The bill requires affected local jurisdictions to adopt a local zoning ordinance that conforms to the TOD zoning standards within two years of BART's adoption of the TOD standards or by July 1, 2022 if no such local standards are adopted. BART's approval of TOD zoning standards is subject to California Environmental Quality Act review and would designate BART as the lead agency. The bill does not subject a development application to two separate sets of zoning standards but, rather, requires the local agency to adopt zoning standards in conformance with the BART-adopted TOD standards.

Where local zoning remains inconsistent with the TOD zoning standards after July 1, 2022, the BART-adopted TOD zoning standards will become the local zoning for any BART-owned parcels that are within 1/2 mile of any existing or planned BART station entrance. BART is required to ensure any otherwise applicable local design standards are included as guidelines for the TOD developer. In addition, the legislation requires a TOD developer to adhere to any applicable local design standards, so long as those standards do not prohibit the minimum height, minimum density, minimum floor area ratio, and maximum parking allowances required by the TOD zoning standards.

"TOD project" is defined to mean any residential or commercial development project wholly or partially on BART land with 50 percent of the floor area of the project dedicated to residential uses, unless local zoning provides for a different percentage of residential uses on those parcels. If the local zoning establishes a lower minimum residential use requirement for BART land, the local zoning shall serve as the minimum residential requirement. Arguably, then, if less than 50 percent of the total floor area of any proposed project is residential, including all elements on both BART and City land, the new law would not apply.

Further, the construction of the TOD project must comply with specified labor and affordable housing requirements.

Local jurisdictions will likely argue that BART does not have independent land use authority to approve development applications but that final authority continues to rest with the local jurisdiction. BART's new zoning authority will now shift NIMBY attention away from local jurisdictions directly toward BART.