On September 30, 2018, Governor Jerry Brown signed into law Assembly Bill 2923, which gives the Bay Area Rapid Transit District land use authority for transit-oriented development on the land it already owns near existing and planned stations.  The District intends to use the law to fully build out BART-owned land around its stations by 2040.

In particular, the District aims to facilitate construction of 20,000 new housing units, of which 6,000 would be affordable, on 250 acres of BART-owned property located within one half-mile of each of its 27 stations that are already built or under construction, as well as at planned stations that have already been approved in compliance with CEQA.  BART also seeks to produce 4.5 million square feet of office and commercial space.

Authored by Assemblymembers David Chiu (D-San Francisco) and Timothy S. Grayson (D-Concord), AB 2923 would accomplish these ambitious objectives by requiring BART, by July 1, 2020, to adopt transit-oriented development zoning standards that establish a streamlined approval process with minimum zoning requirements for height, density, and floor area ratio, and the highest maximum parking requirements for each BART station.  Affected local jurisdictions would then have two years to update their own land use regulations to conform with BART’s standards.

“We can no longer afford to say no to building housing, especially around transit hubs,” said Assemblymember Chiu. “This law takes on two of our biggest challenges in the Bay Area—housing affordability and traffic congestion.”

BART’s new standards are tied to its 2017 TOD Guidelines, which include three TOD “Place Types”—“Reginal Center,” “Urban Neighborhood/City Center,” and “Neighborhood/Town Center”—inspired by the Priority Development Area Place Types defined in Plan Bay Area in 2013, in order to set more quantitative, station-specific expectations.  Based on those Place Types, BART’s TOD Guidelines provide the following minimum allowable density and height limits and the highest allowable parking limits the District must adhere to in adopting station-specific TOD zoning standards:

Thirty percent of the total housing units generated under AB 2923 must be affordable to low- and very low-income residents.  Projects will be eligible for streamlined, by-right approval if they meet those affordability requirements and satisfy the updated TOD zoning requirements required by the law.

In recognition of the urgent need to solve the Bay area’s ongoing housing crisis, AB 2923 was supported by a wide range of organizations including the Bay Area Council, California League of Conservation Voters, California YIMBY, Greenbelt Alliance, and Metropolitan Transportation Commission, as well as the City and County of San Francisco.  It was opposed, however, by the state chapter of the American Planning Association, numerous East Bay cities, and several BART directors, who largely decried the new law’s effect on local control and claimed that BART is ill-equipped to regulate land use.

The strength of the local opposition led to a variety of amendments, including a requirement that BART conduct a public process in adopting its new TOD zoning standards and adhere to local design standards that do not prohibit the minimum height, minimum density, minimum FAR, and maximum parking required by the TOD zoning.  In addition, BART cannot use the power of eminent domain to acquire additional land that would be subject to the new zoning standards.

Despite the limitations imposed through those amendments, opponents of AB 2923 are already threatening to challenge the law before it takes effect on January 1, 2019.  Among other things, they argue that the law violates the state constitution by giving land use authority to a special district.  Although the police power is indeed constitutionally-conferred to California’s cities and counties, AB 2923’s limited grant of land use authority to BART is not especially novel, nor should it be controversial.  Under Government Code section 53094, for example, school districts may exempt themselves from local zoning ordinances under certain circumstances.  See, e.g., City of Santa Cruz v. Santa Cruz City School Board of Education, 210 Cal.App.3d 1, 6 (1989) (holding that a school district can exempt itself from local zoning regulations to replace lights on school’s athletic field because the field served an important educational function).  Thus, in the same way the legislature intended to forestall local obstruction of state-sanctioned school construction and school location through the adoption of section 53094, AB 2923 seeks to enable BART to deliver on its TOD objectives by ensuring cities and counties cannot demand less housing and more parking for transit adjacent development.

“By signing this bill into law, the Governor is sending a powerful message to residents throughout the Bay Area that the same old ‘Not In My Back Yard’ arguments will no longer be able to drown out their voices and calls for more affordable housing,” said Assemblymember Grayson.  “AB 2923 is an important step towards addressing our regional transportation and housing crises and improving the quality of life for all within our communities.”

Although AB 2923 is slated to sunset in 10 years, on January 1, 2029, if BART is successful in exercising its new authority other transit agencies may be encouraged to request similar power from the legislature.


Questions? Please contact Bryan W. Wenter, AICP of Miller Starr Regalia.

For more than 50 years, Miller Starr Regalia has served as one of California’s leading real estate law firms. Miller Starr Regalia has expertise in all types of real property matters, including full-service litigation and dispute resolution, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, exactions, title insurance, environmental law, and land use. Miller Starr Regalia attorneys also write Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. For more information, visit www.msrlegal.com.