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The Zoning and Real Estate Implications of Transit-Oriented Development

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The Zoning and Real Estate Implications of Transit-Oriented Development TCRP Transit Cooperative Research Program Sponsored by the Federal Transit Administration LEGAL RESEARCH DIGEST January 1999--Number 12 ________________________________________________________________________________________________________ Subject Areas: IA Planning and Administration, IC Transportation Law, VI Public Transit, and VII Rail The Zoning and Real Estate Implications of Transit-Oriented Development This report was prepared under TCRP Project J-5, "Legal Aspects of Transit and Intermodal Transportation Programs, "for which the Transportation Research Board is the agency coordinating the research. The report was prepared by S. Mark White. James B. McDaniel, TRB Counsel for Legal Research Projects, was the principal investigator and content editor. THE PROBLEM AND ITS SOLUTION transit-equipment and operations guidelines, FTA financing initiatives, private-sector programs, and The nation's transit agencies need to have access labor or environmental standards relating to transit to a program that can provide authoritatively operations. Emphasis is placed on research of current researched, specific, limited-scope studies of legal importance and applicability to transit and intermodal issues and problems having national significance and operations and programs. application to their businesses. The TCRP Project J-5 is designed to provide insight into the operating APPLICATIONS practices and legal elements of specific problems in transportation agencies. Local government officials, including attorneys, The intermodal approach to surface planners, and urban design professionals, are seeking transportation requires a partnership between transit new approaches to land use and development that and other transportation modes. To make the will address environmental impacts of increased partnership work well, attorneys for each mode need automobile traffic and loss of open space around to be familiar with the legal framework and processes cities and towns, and alleviate financial pressures on of the other modes. Research studies in areas of governments and their constituents. Among these common concern will be needed to determine what approaches is the urban design concept of transit- adaptations are necessary to carry on successful oriented development, which emphasizes that where intermodal programs. transit facilities are in place, or planned to be put in Transit attorneys have noted that they place, there should be a mix of commercial, retail, particularly need information in several areas of residential, and civic uses within close proximity to transportation law, including the facilities designed for the best possible interface. · Environmental standards and requirements; The highest density would be closest to these fixed · Construction and procurement contract procedures gateways or other transit facilities. and administration; This research produced information on legal and · Civil rights and labor standards; and other issues associated with transit-oriented · Tort liability, risk management, and system safety. development. The report should be useful to transit In other areas of the law, transit programs may and development attorneys, financial officials, involve legal problems and issues that are not shared planners, development officials, and anyone with other modes; as, for example, compliance with interested in transit-oriented development. _________________________ TRANSPORTATION RESEARCH BOARD NATIONAL RESEARCH COUNCIL CONTENTS 1. INTRODUCTION .................................................................................................................................... 3 2. ELEMENTS OF TRANSIT-ORIENTED DEVELOPMENT POLICIES .................................................. 4 a. Regulating Development Within Station Nodes and Corridors .................................................... 5 i. Distance from Transit Stations ...................................................................................... 5 ii. Density and Use Regulations ........................................................................................ 5 iii. Bulk, Setback and Area Controls .................................................................................. 6 iv. Station Area Urban Form .............................................................................................. 6 v. Street Patterns and Parking Restrictions ........................................................................ 7 b. Ancillary Techniques ................................................................................................................. 8 i. Urban Growth Boundaries and Tier Systems ................................................................. 8 ii. Joint Development ........................................................................................................ 9 iii. Concurrency ............................................................................................................... 11 iv. Transfer of Development Rights ................................................................................. 12 c. Procedures for Implementing TOD ........................................................................................... 12 i. Specific Plans ............................................................................................................. 12 ii. Planned Unit Development ......................................................................................... 12 iii. Development Agreements ........................................................................................... 13 iv. Capital Improvements Program ................................................................................... 13 d. National Survey ....................................................................................................................... 13 3. LEGAL BASIS FOR TRANSIT-ORIENTED DEVELOPMENT ........................................................... 16 a. Constitutional Issues: Takings, Due Process, and Equal Protection ............................................ 17 b. Zoning Authority ..................................................................................................................... 22 c. Environmental Impact Statements and Environmental Reporting Requirements ........................ 25 d. Joint Development and Redevelopment Authority ..................................................................... 27 e. Regional General Welfare and Intergovernmental Agreements .................................................. 29 f. Certainty and Definiteness ........................................................................................................ 31 g. Comprehensive Plan Consistency ............................................................................................. 34 4. CONCLUSION ..................................................................................................................................... 39 APPENDIX A--SURVEY QUESTIONS ..................................................................................................... 41 APPENDIX B--TECHNIQUES USED BY SURVEY RESPONDENTS TO ENCOURAGE TOD ............... 43 APPENDIX C--SURVEY PARTICIPANTS ENGAGED IN JOINT DEVELOPMENT PROJECTS ............ 44 3 The Zoning and Real Estate Implications of Transit-Oriented Development By S Mark White, Attorney, Freilich, Leitner & Carlisle, Kansas City, Missouri 1. INTRODUCTION economic impacts.4 These environmental impacts have prompted changes in federal legislation designed to Transportation is, in many ways, the most important encourage shifts in urban travel from the automobile to segment of a community's infrastructure. A community's public transit,5 such as the Intermodal Surface transportation system has a profound influence on its land Transportation Efficiency Act (ISTEA)6 and the Clean Air use patterns and rate of growth. Not only is the Act Amendments of 1990.7 "Transit supportive existing transportation network a shaper of urban form, but a region's land use patterns influence the transportation _________________________________ modes used for work and nonwork interurban travel. Since 4 the advent of the federal-aid highway legislation of 1954, Motor vehicle accidents are the leading cause of death for Americans until they reach their mid 30s. BUREAU OF TRANSP. the automobile has become the predominant form of 1 STATISTICS, U S. DEP'T OF TRANSP, TRANSP IN THE transportation in the nation's urban areas Highways in UNITED STATES: A REVIEW (1997) Imported oil as a share of urban areas have fostered urban sprawl, characterized by national consumption has increased from 27 percent in 1985 to low-density, single-use suburban development, which has 44.5 percent in 1995. Transportation accounts for two-thirds of U S hastened the decline of public transit as a mode of oil consumption, with highway vehicles accounting for the largest interurban travel.2 This phenomenon has increased the share, Id Approximately 40 percent of man-made hydrocarbon and spatial separation of jobs and residences, has encouraged nitrogen oxide (NOx) emissions, as well as two-thirds of carbon development in areas not served by public transit, and has monoxide (CO) emissions, are generated by automobile travel M BERNICK & R CERVERO, TRANSIT VILLAGES IN THE created a pattern of development in our suburban areas that 21ST CENTURY 44 (1997) Automobiles also generate airborne ensures almost exclusive reliance on the automobile as the particulates (PM-10), water pollution
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