Transit-Oriented and Joint Development: Case Studies and Legal Issues (2011)

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17 residential, or mixed uses.”177 The purpose of such pro- jects must be “to foster transit use, enhance the transit service, or foster the integration of land use and trans- portation.”178 In Connecticut, the authority to engage in TOD pro- jects is granted not to the state’s transit districts but to the Commissioner of Transportation and requires fur- ther approval from the state’s Secretary of the Office of Policy and Management.179 As with the California ex- amples, the grant of authority includes a definition of TOD, which also acts as a limitation. In this case, how- ever, the geographic scope is broadened to 0.5 mi or “walking distance” of transit facilities.180 Maryland simi- larly provides specific authority to its state department of transportation to engage in TOD activities.181 Pennsylvania’s Transit Revitalization Investment District Act, adopted in 2004, authorizes the state’s transit agencies to designate “transit revitalization in- vestment districts” (TRIDs) to “[p]romote local, county and regional economic development and revitalization activities through private sector investment, reinvest- ment and joint development activities in conjunction with public transportation improvements.”182 Desig- nated TRIDs may include lands within 0.5 mi radius of an existing or planned rail or busway transit station and must be supported by a planning study that pro- vides analysis of existing conditions, proposed land uses, property availability, infrastructure conditions, and public financing requirements.183 Once a TRID has been created, the transit agency may acquire and de- velop land within the TRID.184 The TRID designation also creates a co-terminus “value capture area” in which the transit agency may share—along with the munici- pality, school district, and county—in the incremental increases in property tax revenues generated by the new real estate investment within the TRID.185 Reve- nues accrued from the value capture area must be used for creation and maintenance of necessary public im- provements in the TRID.186 IV. CASE LAW When TCRP LRD 12 was published 10 years ago, there were no reported cases involving TOD or TJD projects. A telling factor indicating that transit-related development products have moved from infancy toward maturity is the presence of at least some litigation in- volving the development strategies. TOD planning poli- 177 Id. § 99420(a). 178 Id. § 99420(c). 179 CONN. GEN. STAT. § 13b-79kk(b) (2008). 180 Id. § 13b-79kk(a)(4). 181 MD. CODE ANN., TRANSP. § 7-102(a)(2) (2008). 182 73 PA. CONS. STAT. § 850.102(2)(i) (2008). 183 Id. §§ 850.103, 850.301(1), (3). 184 Id. § 850.501. 185 Id. § 850.701. 186 Id. § 850.702. cies and zoning regulations, while perhaps oriented toward different aims than traditional “Euclidean” zon- ing and planning practices, are nevertheless based on the same basic governmental function of exercising po- lice power regulatory control over the use of land. Hence, the same general legal limitations that apply to all land-control regulations and approval processes— such as uniform treatment within zoning districts187 and the need for quasi-judicial decisions to be supported by substantial evidence188—apply to TOD regulations and proceedings as well. The following subsections, while tracing many of the recurrent legal issues that arise in modern land-use law, cover the issues from the perspec- tive of TOD, TJD, and related development project types. A fundamental issue in any land-use regulatory mat- ter is whether the government is acting within the scope of its police power authority. That authority is restricted by constitutional principles of substantive due process, which require regulatory actions to have some logical connection to community health, safety, morals, or general welfare.189 When the regulation ema- nates from a local government, an allied issue is whether the local government is acting within the scope of authority delegated to it by the state legislature. As instruments of the state, local governments have no inherent power apart from that granted to them by the state. Although through much of the 19th and 20th cen- turies courts interpreted grants of authority to local governments narrowly, the more recent interpretive trend has been to view such delegations broadly.190 In Molo Oil Co. v. City of Dubuque,191 owners and lessees of industrial properties in a riverside area of Dubuque, Iowa, known as Ice Harbor appealed the city’s rezoning of their properties to a planned unit de- velopment (PUD) classification. Before the rezoning, the area had been zoned and used for heavy industrial uses. In 1989, however, the city designated the area an urban renewal district and commissioned the creation of a new master plan. The master plan recommended tran- sitioning the area from its current industrial character to a more pedestrian-oriented environment with recrea- tional, commercial, and residential uses. In 2001, the area adjacent to Ice Harbor, which had also been indus- trial, was redeveloped into a $188 million campus con- sisting of a river walk, museum/aquarium, hotel, water park, and conference center. In 2002, to continue the redevelopment of the broader area and to implement the master plan, the city rezoned the entire Port of Du- 187 Evarts v. City of Somerville, 2006 Mass. 14 LCR 148, 2006 LEXIS 21 (Mass. Land Ct. Mar. 7, 2006). 188 IBC Denver II v. City of Wheat Ridge, 183 P.3d 714 (Colo. Ct. App. 2008). 189 Lingle v. Chevron U.S.A., 544 U.S. 528, 542, 125 S. Ct. 2074, 2083–84, 161 L. Ed. 2d 876, 891 (2005). 190 JULIAN C. JUERGENSMEYER & THOMAS E. ROBERTS, LAND USE PLANNING AND DEVELOPMENT REGULATION LAW § 3.7, West Group (2d ed. 2007). 191 Molo Oil, 692 N.W.2d 686 (Iowa 2005).

18 buque area, including Ice Harbor, to a PUD. Under the PUD zone, the existing industrial uses, including those of the plaintiffs, were allowed to continue as noncon- forming uses, but with tight restrictions on expansion, change of use, and rebuilding. The plaintiffs appealed the rezoning, claiming that the city’s action went beyond its police power authority and affected a taking of their property in violation of the Fifth and Fourteenth Amendments of the U.S. Con- stitution and parallel provisions of the Iowa constitu- tion. The state Supreme Court, affirming the prior deci- sion of the district court, found that the city’s action was well within the police power authority over plan- ning and zoning issues delegated to it by the state legis- lature. Echoing language from the Standard State Zon- ing Enabling Act of 1924,192 the relevant provision of state law cited by the court provides that zoning regula- tions “shall be made in accordance with a comprehen- sive plan and designed to…encourage efficient urban development patterns…[and] to promote health and the general welfare.”193 So long as it is fairly debatable that a zoning provision has “any real, substantial relation to the public health, comfort, safety, and welfare,” the court stated, it will be deemed valid.194 Applying that standard to the Ice Harbor rezoning, the court con- firmed the city’s findings, based on the underlying mas- ter plan, that the rezoning “encouraged efficient devel- opment patterns; …promoted the health and general welfare…; and was made with a view to encourage the most appropriate use of the land.”195 As to the takings claim, the court affirmed the lower’s court holding that the claim was not ripe, as the plaintiffs had not yet ex- hausted their administrative remedies.196 A. Procedural Due Process In addition to ensuring that land-use regulations are within the government’s legitimate police power author- ity, it is equally important that land-use decision- making processes adequately safeguard participants’ procedural due process rights. Both the Fifth and Four- teenth Amendments to the Federal Constitution pro- hibit government from depriving “any person of life, liberty, or property without due process of law.”197 De- termining precisely what process is due in the land-use permitting and zoning contexts has been a subject of fairly vigorous judicial debate.198 In Summers v. City of Charlotte,199 two groups of land owners petitioned the City of Charlotte, North Carolina, in 1999 to rezone lands in the city’s SouthPark area. 192 See JUERGENSMEYER & ROBERTS, supra note 190, § 3.6. 193 IOWA CODE § 414.3 (2008). 194 Molo Oil, 692 N.W.2d at 691. 195 Id. 196 Id. at 694. 197 U.S. CONST. amend. V; U.S. CONST. amend. XIV, § 1. 198 See, e.g., Fasano v. Wash. County, 264 Or. 574, 507 P.2d 23 (1973). 199 149 N.C. App. 509, 562 S.E.2d 18 (2002). One group sought to change the zoning of their property from a general office designation to a mixed-use district; the other group sought to change the zoning of an adja- cent property from a general commercial classification to a commercial center designation. In 2000, the city adopted a small area plan for the SouthPark area, con- taining goals for “creating a greater mixture of land uses, especially by incorporating more multi-family residential development; identifying and planning for future mass transit service in the SouthPark area; [and] developing a multi-modal transportation system that emphasized pedestrian improvements and linkages to mass transit.”200 Shortly after the city’s adoption of the plan, the state legislature amended the state zoning and planning leg- islation to allow for “conditional zoning.” Conditional zoning is a process that allows both rezoning and condi- tional use approval to occur in a single process, as op- posed to the more traditional two-step procedure. After subsequent modifications to their rezoning petitions, the two groups of land owners sought approval of their applications under the new conditional zoning process. The city, determining that the applications met the goals of the small area plan, approved the applications subject to continuing compliance with the relevant zon- ing code provisions for the respective designations. Surrounding homeowners sued the city, claiming the conditional zoning process violated constitutional guar- antees of separation of powers and the plaintiffs’ sub- stantive and procedural due process rights. The plain- tiffs’ primary objection was to the removal of the customary conditional use permitting process that fol- lows most rezonings. Because rezoning processes in North Carolina are treated as legislative actions, they provide surrounding property owners with only limited participation rights. Hence, the elimination of the con- ditional use process, with its quasi-judicial procedural rules, effectively reduced the neighbors’ opportunity to participate in the approval process. In affirming a lower court judgment in favor of the city, the state court of appeals noted that the “fundamental premise of proce- dural due process protection is notice and the opportu- nity to be heard,” which the court found the plaintiffs had received abundantly through various public meet- ings the city hosted for the proposed rezonings.201 In Albuquerque Commons v. City of Albuquerque,202 the holder of a long-term lease to an abandoned high school site in the Uptown section of Albuquerque, New Mexico, sought to redevelop the property with a big-box retail project. Citing concerns about the possible nega- tive air quality impacts that could come with additional auto-oriented commercial uses, the city adopted a mora- torium on development in the entire Uptown area and directed the creation of a new sector plan. Under the new plan, the high school site and two adjacent proper- ties were reclassified as “Intense Core,” a designation 200 Id. at 21. 201 Id. at 24–25. 202 144 N.M. 99, 184 P.3d 411 (2008).

19 intended to promote a pedestrian- and transit-friendly environment by, inter alia, prohibiting free-standing retail structures, limiting their size, and capping the maximum percentage of space devoted to retail to 10 percent. After the adoption of the plan, city staff denied the pending big-box application for the high school site, finding the project inconsistent with the provisions of the new plan. The applicant simultaneously brought two separate actions, seeking judicial review of both the plan adop- tion203 and the denial of the development application. The controlling issue governing the outcome of both appeals was whether the city acted correctly in adopt- ing the new plan through a legislative process, or whether the action needed to be accomplished through a quasi-judicial proceeding. Under New Mexico law, municipal action that affects a downzoning of a limited number of specifically targeted properties must be sup- ported by findings and evidence of either a change in conditions in the community surrounding the subject property or a demonstration that the prior zoning des- ignation was the result of some governmental mis- take.204 Given the small number of properties desig- nated “Intense Core” in the new sector plan and the increased restrictions on uses allowed in the zone com- pared to the previous designation, the state Supreme Court had little difficulty finding that the city acted in error. Citing the seminal Oregon case, Fasano v. Wash- ington County,205 the court held that for the rezoning to be valid, the city would have had to conduct quasi- judicial proceedings and satisfy the “change or mistake” criteria. B. Vested Rights Any time a local government changes the legislative standards that govern the uses allowed on a piece of land, the question arises whether the new regulation can legally be applied to development applications for that property that may be pending or approved but not constructed. If the owner’s rights to develop under the old standards are deemed to be “vested,” the new regu- lations cannot be enforced without giving rise to a tak- ings claim. On the other hand, if the development rights have not been vested, the new regulations can be applied. Although the bright line for when vesting oc- curs varies from state to state, under the basic rule, the government must have given at least some preliminary approval for the project and the land owner must have acted in good faith in reliance on that approval by mak- 203 As part of the action to review adoption of the new sector plan, the applicant (now plaintiff) included § 1983 claims for damages it allegedly suffered to its procedural and substantive due process rights and for inverse condemnation for allegedly taking its property rights in violation of the Fifth and Fourteenth amendments. 204 See Miller v. Albuquerque, 89 N.M. 503, 506, 554 P.2d 665, 668 (1976); Davis v. Albuquerque, 98 N.M. 319, 648 P.2d 777 (1982). 205 264 Or. 574, 507 P.2d 23 (1973). ing improvements to the land or other significant com- mitment of resources.206 In Wal-Mart Stores v. Clark County,207 Wal-Mart be- gan early in 1999 pursuing construction of two new supercenters in the Las Vegas region. By the fall of that year, the company had expended substantial sums for the purchase and lease of the two properties and for architectural, engineering, water, and utility services. The company had also received site grading permits from the county and had begun actual site preparation activities. In October of that year, however, members of the Clark County Commission became concerned about the possible negative impacts the two supercenters might have on pedestrian and vehicle traffic and passed an ordinance prohibiting businesses with more than 110,000 sq ft of retail space from devoting more than 7.5 percent of that space to the sale or display of food items. The ordinance effectively prohibited construction of the supercenters, both of which were to include sub- stantial grocery components. Believing its property rights had been violated by the late adoption of the ordinance, Wal-Mart sued the county, claiming that it had a vested right to continue with the construction of the two stores. On a motion for a preliminary injunction, the federal district court found that the prior preliminary approvals from the county and the company’s significant expenditures in reliance on those approvals demonstrated that the de- velopment rights in the two projects were indeed vested under Nevada law. Having found that the company would likely succeed on the merits of its case once it went to trial, and that it would likely suffer irreparable harm should the ordinance be allowed to go into effect, the court issued the preliminary injunction, barring enforcement of the ordinance. C. Consistency Consistency usually refers to some level of conso- nance between a local government’s zoning ordinance and its general or comprehensive plan.208 Washington’s Growth Management Act (GMA), however, also re- quires consistency between planning and zoning poli- cies and actual outcomes. For urban counties in the western portion of the state, the law requires a periodic assessment to [d]etermine whether a county and its cities are achieving urban densities within urban growth areas by comparing growth and development assumptions, targets, and objec- tives contained in the county-wide planning policies and the county and city comprehensive plans with actual 206 STUART MECK, GROWING SMART LEGISLATIVE GUIDEBOOK: MODEL STATUTES FOR PLANNING AND THE MANAGEMENT OF CHANGE 8–95 (2002), see http:// ideas.repec.org/p/hud/wpaper/39157.html#provider regarding availability. 207 125 F. Supp. 2d 420 (D. Nev. 1999). 208 JUERGENSMEYER & ROBERTS, supra note 190, § 2.12.A.

20 growth and development that has occurred in the county and its cities.209 In Kitsap County v. Central Puget Sound Growth Management Hearings Board,210 the county’s assess- ment showed that during the first 5 years of the state’s growth management program, only 18 percent of resi- dential units had located in the county’s urban growth areas (UGAs) despite a county growth policy stating that 83 percent of units should be within UGAs. Al- though the county’s comprehensive plan had been in effect only during the last year of the 5-year period cov- ered in the assessment, the court held that the level of inconsistency between the plan’s policies and facts on the ground triggered the statutory obligation to adopt reasonable remedial measures. These measures, accord- ing to the court, needed to be something more than what the county had articulated, which the court found to be a mere recounting of preexisting policies. Another atypical application of the consistency doc- trine arises when conflicts occur between the contents of plans developed by regional authorities, such as MPOs, and those created by local municipalities. Look- ing again at the GMA, the Washington Court of Appeals in City of Des Moines v. Puget Sound Regional Coun- cil211 reviewed an alleged conflict between the Council’s regional transportation plan, which included an addi- tional runway for the Seattle–Tacoma International Airport, and the comprehensive plans of local govern- ments adjacent to the airport. Although there was some question as to whether an actual conflict existed, the court nevertheless reached the bigger issue of how to resolve such conflicts. The court found no specific statu- tory guidance on how to resolve such conflicts, and in- stead had to rely on the GMA’s broader structure: [W]hen construed as a whole, the GMA evinces the Legis- lature's intent to discard the traditional land use system in which each jurisdiction functioned as an isolated entity in favor of a scheme which stresses coordination, coopera- tion, and integration. In light of this legislative purpose, we agree with the PSRC that if the coordinated planning process does not result in consistency between regional and local plans, the regional plans must prevail.212 D. NEPA and “Mini-NEPAs” The National Environmental Policy Act of 1969213 (NEPA) requires government agencies to assess the environmental impacts posed by “major federal ac- tions.”214 For such actions, the agency must, in most cases, prepare at least an environmental assessment, if not a full-blown environmental impact statement.215 In 209 WASH. REV. CODE § 36.70A.215(1)(a) (2009). 210 138 Wash. App. 863, 158 P.3d 638 (2007). 211 97 Wash. App. 920, 988 P.2d 993 (1999). 212 Id. at 998–99. 213 Pub. L. No. 91-190, 83 Stat. 852 (1970) (codified at 42 U.S.C. §§ 4331–4347 (2006)). 214 42 U.S.C. § 4332(2)(C)(iii) (2006). 215 40 C.F.R. §§ 1500–1508 (2008). Woodham v. Federal Transit Administration,216 the primary issue was whether FTA’s plan approval and project funding for a transit-oriented joint development project was a major federal action under NEPA, trigger- ing the environmental analysis requirements. The pro- ject at issue was a proposed joint development for the Lindbergh transit station area in Atlanta, which in- cluded the construction of new office buildings, retail shops, and rental and for-sale multifamily residential units. The Metropolitan Atlanta Regional Transit Au- thority (MARTA) applied to FTA for joint development funds that would finance the purchase of land for the project. Analogizing to non-joint development cases in- volving land purchases, the court noted that to be a major federal action under NEPA, the federal agency must have “sufficient ‘power’ or ‘control’ over a pro- ject.”217 In this case, the court held, FTA had no such control or responsibility: MARTA created, developed, and implemented the joint development plan, using funds received from private in- vestors. While MARTA used FTA funding to purchase property (9.6 of the 48 total acres) and begin preliminary development of the project, these funds do not transform the joint development plan into a “major federal action.”218 The court consequently granted FTA’s motion to dismiss the NEPA claim and a related claim under the National Historic Preservation Act. Utahns for Better Transportation v. U.S. Department of Transportation219 represents a more traditional appli- cation of NEPA in transportation contexts—the pro- posed construction of a new highway through federally- protected wetlands. Plaintiffs in the case, several Utah- based environmental groups, sought a declaration that the environmental impact statement for the project failed to meet NEPA standards for, inter alia, failing to consider a transit-oriented development land use alter- native. Citing Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council,220 the court held that the proffered alternative was remote and specula- tive and, hence, did not meet NEPA’s “rule of reason.”221 The defendant transportation agencies, consequently, were not required to consider the alternative. Notwithstanding the holding in Utahns, the recent popularity of transit-based land-use visioning and sce- nario planning projects in the United States has led some writers to assert that land use alternatives, such as the one promoted in Utahns, have ceased to be speculative and have become part of the state-of-the- practice for transportation and land-use planners.222 216 125 F. Supp. 2d 1106 (N.D. Ga. 2000). 217 Id. at 1109. 218 Id. 219 305 F.3d 1152 (10th Cir. 2002). 220 435 U.S. 519, 551, 98 S. Ct. 1197, 1215, 55 L. Ed. 2d 460, 484 (1978). 221 Utahns, 305 F.3d at 1172. 222 E.g., Keith Bartholomew, Cities and Accessibility: The Potential for Carbon Reductions and the Need for National Leadership, 36 FORDHAM URB. L.J. 159, 199–204 (2009); Reid

21 Changes in the application of NEPA’s rule of reason over time suggest that the determination of a proposed alternative’s reasonableness is based on context. What was unreasonable in the past may become reasonable over time due to changes in technology, science, society, economics, and professional practice: “the concept of alternatives is an evolving one, requiring the agency to explore more or fewer alternatives as they become bet- ter known and understood.”223 The completion of more than 80 metropolitan-wide, transit-based scenario planning projects between 1989 and 2003,224 coupled with increased court scrutiny of the land-use assumptions used to justify new highway pro- jects225 and the adoption of state226 and introduction of federal227 legislation encouraging land-use scenario analysis, suggests that Utahns may represent the end of the “speculative” phase for such alternatives. Per- haps the holding in Utahns is better understood as the result of the plaintiffs’ failure to satisfy the “pleading” requirements of Vermont Yankee—NEPA participants must articulate proposed alternatives with sufficient specificity—than an indication that transit-based land use alternatives are, per se, beyond the rule of reason. This interpretation is bolstered by the subsequent his- tory of the case, where, during a remand on other grounds, the plaintiffs developed a detailed “Citizens Smart Growth Alternative” that became the basis for a settlement of the litigation.228 Tellingly, in a subsequent study of another proposed highway, the Utah Depart- ment of Transportation—the primary defendant in Utahns—decided on its own accord to incorporate a transit-oriented land-use alternative as part of its NEPA analysis.229 Ewing, Research You Can Use: Regional Scenario Plans and Meta-Analysis, Plan., Mar. 2007, at 38, http://cmpweb.arch. utah.edu/files/Research_Mar07.pdf. 223 E.g., Bartholomew, supra note 222, at 201 (2009) (quoting Vermont Yankee, 435 U.S. at 552–53). 224 BARTHOLOMEW & EWING, supra note 101, at 16–18, http://www.scag.ca.gov/pptac/pdfs/other/JAPA_LUTS.pdf. 225 See Conservation Law Found. v. FHWA, No. 06-cv-45-PB, 2007 U.S. Dist. LEXIS 64465 (D. N.H. Aug. 30, 2007); Senville v. Peters, 327 F. Supp. 2d 335 (D. Vt. 2004); N.C. Alliance for Transp. Reform v. U.S. DOT, 151 F. Supp. 2d 661, 690 (M.D.N.C. 2001); Sierra Club v. U.S. DOT, 962 F. Supp. 1037 (N.D. Ill. 1997); Citizens for a Better Environment v. Deukmejian, 1990 U.S. Dist. LEXIS 17976 (N.D. Cal. Dec. 21, 1990). 226 CAL. GOV’T CODE § 65080.3 (2008). 227 H.R. 1329, 111th Cong. § 6304(c)(6) (2009). 228 Robert W. Adler, In Defense of NEPA: The Case of the Legacy Parkway, 26 J. LAND RESOURCES & ENVTL. L. 297, 306 (2006). 229 Envision Utah, Mountain View Corridor Growth Choices Process: Helping Solve Our Communities’ Transportation Problems, in Mountain View Corridor Draft Environmental Impact Statement App. 3A (Utah Department of Transportation 2008), www.udot.utah.gov/mountainview/.../ mountainview.../03A-Growth_Choices_Study.pdf. Despite NEPA’s dominance in the environmental le- gal literature, environmental analysis and reporting is not just a function of federal law. Since the passage of NEPA in 1969, 16 states and the District of Columbia have passed “mini-NEPAs,” requiring assessments of state and local actions in a manner similar to NEPA.230 The actions covered by these mini-NEPAs vary from state to state. In some states, such as Connecticut, the mini-NEPA affects only state agency activities.231 In others, such as New York, actions by local governments, including land-use permitting, are covered.232 The at- torney general of California has interpreted that state’s mini-NEPA—the California Environmental Quality Act (CEQA)—as requiring local governments to assess greenhouse gas (GHG) emissions in land-use planning and permitting contexts. In a celebrated lawsuit against San Bernardino County, the state attorney general asserted that CEQA required the county to assess and mitigate GHG emis- sion impacts associated with an update of the county’s general plan.233 As part of the settlement of the lawsuit, the county agreed to prepare a plan that will include a GHG emissions inventory and emissions reduction tar- gets.234 The application of CEQA to GHGs is also being observed in project level decisions. In Center for Bio- logical Diversity v. Yucca Valley,235 a California superior court reversed a municipality’s permit approval of a new 184,000 sq ft Wal-Mart Supercenter for failing to account for the project’s transportation-related GHG emissions. Both of these cases suggest that GHG im- pacts analysis under state mini-NEPAs could favor TOD and joint development projects, where GHG emis- sions are comparatively lower. E. Eminent Domain The use of eminent domain powers to facilitate eco- nomic development objectives, while always conten- tious, became particularly controversial after the Su- 230 Caleb W. Christopher, Success By a Thousand Cuts: The Use of Environmental Impact Assessment in Addressing Climate Change, 9 VT. J. ENVTL. L. 549, 553 (2008). 231 CONN. GEN. STAT. §§ 22a-1 to 22a-1h (2008). 232 Kathryn C. Plunkett, Comment, Local Environmental Impact Review: Integrating Land Use and Environmental Planning Through Local Environmental Impact Reviews, 20 PACE ENVTL. L. REV. 211, 211–12 (2002). 233 Akin Gump Strauss Hauer & Feld, Environmental Alert: Affirmative Use of the California Environmental Quality Act to Require Consideration of Climate Change Impacts in Land Use Planning (Sept. 14, 2007), http://www.akingump.com/files/Publication/71a70d4c-b16d- 462b-ae5a-6054e9c5600f/Presentation/PublicationAttachment/ 36045993-7a52-40a4-88e7-627bd65486bb/1026.pdf. 234 Settlement Agreement between the State of California and the County of San Bernardino (Aug. 21, 2007), http://ag.ca.gov/cms_pdfs/press/2007-08- 21_San_Bernardino_settlement_agreement.pdf . 235 Case No. CIVBS800607 (Sup. Ct. San Bernardino Cty. May 14, 2009).

22 preme Court’s decision in Kelo v. New London.236 The controversy came to TOD/joint development contexts in the litigation surrounding the Atlantic Yards Arena and Redevelopment Project in Brooklyn, New York. The estimated $4 billion project, situated on top of the Met- ropolitan Transportation Authority’s (MTA) Vanderbilt Rail Yards, is one of the largest transit-oriented joint development projects ever proposed. In addition to a new arena for an National Basketball Association fran- chise, the project will encompass 336,000 sq ft of office space, 6,430 units of affordable and market-rate hous- ing, 247,000 sq ft of retail space, a 180-room hotel, and 8 acres of open space.237 The site is served by 13 subway lines, the Long Island Rail Road, and 11 bus lines.238 While most of the Atlantic Yards site is comprised of the MTA rail yards, it also includes several privately- owned parcels. When the quasi-public agency building the project announced its plans to use eminent domain to assemble the project’s real estate, the owners of the privately-owned parcels sued to stop the takings. In two separate actions, one in federal court239 and one in state court,240 the landowners argued that the project did not meet the Public Use Clause of the Federal Constitu- tion’s Fifth Amendment and parallel provisions in the state constitution. While acknowledging that the project will provide significant public benefits “such as the re- dress of blight, the construction of a sporting arena, and the creation of new housing, including 2,250 new units of affordable housing,” the plaintiffs argued in both cases that the primary motivation for the project was to enrich the private individual who proposed the project and who stands to profit substantially from its comple- tion.241 Noting that the primary mechanism for en- forcement of the Public Use Clause is accountability of political officials to the electorate, the federal court of appeals observed that its standard of review in such cases is “an extremely narrow one.”242 In line with Kelo and other federal decisions, the court stated that so long as the exercise of eminent domain is “rationally related to a conceivable public purpose,” the constitu- tional standards have been satisfied.243 The courts in both cases found that this standard had been amply met.244 236 545 U.S. 469, 125 S. Ct. 2655, 162 L. Ed. 2d 439 (2005). 237 Barclays Center, About Atlantic Yards Web site (2008), available at http://www.barclayscenter.com/about/about_ atlanticyards.shtml. 238 Barclays Center, Transportation Web site (2008), available at http://www.barclayscenter.com/venue/venue_4. shtml. 239 Goldstein v. Pataki, 516 F.3d 50 (2d Cir. 2008). 240 Goldstein v. N.Y. State Urban Dev. Corp., 2009 N.Y. Slip Op. 3903, 64 A.D. 3d 168, 879 N.Y.S.2d 524, 2009 N.Y. App. Div. LEXIS 3754 (2009). 241 Goldstein, 516 F.3d at 56. 242 Id. at 57. 243 Id. at 58. 244 Id. at 59; Goldstein, 2009 N.Y. App. Div. LEXIS 3754, at 25. F. Religious Land Uses Although religious land uses do not, per se, have a TOD or joint development dimension to them, federal legislation that limits local government planning and zoning authority over religious uses can affect TOD and joint development projects. The Religious Land Uses and Institutionalized Persons Act of 2000 (RLUIPA) is Congress’s second recent attempt to “protect the free exercise of religion from unnecessary government inter- ference,”245 the prior statute246 having been invalidated by the Supreme Court.247 Both RLUIPA and its prede- cessor represent congressional responses to the Su- preme Court’s ruling in Employment Division v. Smith,248 where the Court held that neutral, generally applicable laws that impact religious land uses need only show a rational relationship to a legitimate gov- ernmental interest—a fairly low legal standard. RLUIPA increases protection of religious land uses be- yond this standard in two primary ways. First, the Act requires governments whose individualized land-use decisions place a substantial burden on the exercise of religion to demonstrate that those decisions advance a compelling governmental interest and are no more re- strictive than necessary.249 Second, the Act prohibits land-use regulations that treat comparable religious and nonreligious assemblies unequally.250 It was this second RLUIPA standard—the “equal terms” provision—that was central to the U.S. district court decision in River of Life Kingdom Ministries v. Village of Hazel Crest.251 The church in that case had purchased property in a B-2 transit-oriented commer- cial district that was also part of the village’s tax in- crement financing district. The B-2 district, which was intended to promote transit-oriented commercial uses, did not permit churches. It did, however, allow for art galleries, museums, public libraries, recreational build- ings, and community centers. When the church’s appli- cation for a special-use permit was denied, it sued the village, arguing that because these other noncommer- cial, nonreligious uses were assembly-oriented uses comparable to religious uses, the village’s prohibition on churches violated RLUIPA. The court agreed, initially, and granted the church’s motion for a temporary re- straining order (TRO) against the village.252 In response, the village amended the B-2 zone to eliminate all of the 245 146 CONG. REC. H7190 (2000) (statement of Rep. Charles T. Canady). 246 Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb. 247 Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157, 138 L. Ed. 2d 624 (1997). 248 494 U.S. 872, 885, 110 S. Ct. 1595, 1603, 108 L. Ed. 2d 876, 890 (1990). 249 42 U.S.C. § 2000cc(a)(1). 250 42 U.S.C. § 2000cc(b)(1). 251 No. 08 C 0950, 2008 U.S. Dist. LEXIS 53491 (N.D. Ill. July 14, 2008). 252 Id. at 17.