Guide to Joint Development for Public Transportation Agencies (2021)

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29   3.1 Introduction and Summary of Best Practices This chapter addresses a critical stage in the JD process: how a transit agency determines that a site under its control is ready for development and prepares to make it available for developer solicitation. This is a planning process, consisting, as applicable, of five distinct steps: identifying and prioritizing a site based on market demand and other key criteria; determining how much of the agency-controlled property should be available for development, under what conditions, and with what transit requirements; creating a market-justified TOD concept plan to inform sub sequent steps; vetting the plan with local officials and community stakeholders; and establishing the institutional and commercial parameters of the potential transaction. This planning process is the bridge between the agency’s site inven- tory and overall TOD/JD policies (discussed in the preceding chapter) and the solicitation of developers for site-specific projects (discussed in the next chapter). The five steps described here are closely interrelated and logically comprise a cohesive stage of the JD process. (That said, an agency might, in its own process, associate some planning steps more closely with program development or solicitation writing.) The planning process described in this chapter assumes at least a moderate level of complexity in an agency’s property portfolio and in the particular sites identified for JD. To the degree that actual condi- tions are less complex, the associated effort would be simpler as well. 3.2 Site Readiness and Prioritization A transit agency needs the ability to recognize when a site is sufficiently development- ready that it makes sense to undertake detailed planning with the intent to solicit developers. It can make this assessment through an informal process, based on data readily at hand and C H A P T E R 3 Planning a Joint Development Project Chapter 2: Creating a Joint Development Program Chapter 3: Planning a Joint Development Project Chapter 4: Choosing a Developer Chapter 5: Executing a Joint Development Project Planning a Joint Development Project 1. Assess development readiness based on site suitability, market demand, transit connectivity, jurisdiction support. 2. Do predevelopment site planning to determine the transit requirements and conceptual development program. 3. Create Development Requirements and Guidelines (DRGs) to carry forward into developer solicitation. 4. Work with local officials and community stakeholders to vet the project and advance entitlement. 5. Establish the key parameters of the JD transaction: method of conveyance and roles and responsibilities.

30 Guide to Joint Development for Public Transportation Agencies demonstrable market interest, or it can undertake a more structured review based on a series of metrics used to compare sites on an on-going basis. This more formal, metric-based approach is appropriate for agencies with large real estate inventories and complex, diverse regional markets. There are two distinct types of site readiness assessments: • Ad hoc, individual assessments, to determine whether a specific site is ready to advance. This inquiry may be triggered by real-world events pointing at the site in question, such as the emergence of development in the vicinity, the opening of a new highway or transit connection improving the site’s position in the regional market, or the receipt of an unsolicited proposal. • Periodic portfolio assessments, to identify a tranche of sites for which to undertake planning, launch solicitations, and devote the corresponding time and resources. These portfolio-level assessments are rooted in the site inventory recommended as a baseline step in Chapter 2. Several agencies undertake systematic reviews of this nature. UTA’s enabling act requires the staff to prioritize sites in collaboration with host municipalities and limits the number that may be pursued in any year.1 In either case, an agency’s evaluation of site readiness typically con- siders four criteria: site suitability, market demand, transit connectivity, and jurisdictional support. These criteria were identified by several of the transit agencies surveyed for this guide and typically appear in published TOD/JD prioritization models, such as those developed by Austin’s Cap Metro, the Northeast Ohio Areawide Coordinating Agency (NOACA), and the San Diego Association of Governments (SANDAG). Figure 17 includes a sample from Cap Metro’s TOD readi- ness analysis of the stations on its 801 bus rapid transit corridor.2 The four criteria are described below and illustrated in Figure 18. The first two—site suit- ability and market demand—are threshold criteria, the second two supporting criteria. Even if an agency takes a less formal, more qualitative approach, these are the criteria it would logically weigh in assessing whether a site is at or nearing development readiness.3 Although the criteria are distinct in concept, they are interactive in practice. A weakness in market demand might be mitigated by a state, local, or federal financial incentive available because of strong jurisdictional support. A prohibitive cost premium for structured parking might be relieved by improved transit service or by zoning changes that reduce the parking requirement. A stop sign with respect to site suitability or market demand does not necessarily mean that a site is permanently infeasible; it may mean that the jurisdictional support or transit conditions that would ultimately push the site over the threshold are not yet in place. A. Site suitability. A threshold question is whether the site in question is available with sufficient space to develop a project that is physically and financially feasible. This depends not only on the nominal land area, but on limiting physical conditions like soils, water table, or seismic issues; encumbrances that make portions of the site effectively off-limits; and major cost premiums. Encumbrances may be legal (such as easements running across the site) or regulatory. They may also arise for stewardship reasons—the need to preserve portions of the site for future transit improvements. Foreknowledge of such conditions is why the property inventory described in Chapter 2 is so important. (See, for example, Caltrain’s Rail Corridor Use Policy.) Extraordinary cost premiums are often associated with the need to replace, relocate, or upgrade a station’s transit infrastructure in order to create an adequate development site. An evaluation of site readiness typically considers four criteria: site suitability, market demand, transit connectivity, and jurisdictional support.

Planning a Joint Development Project 31   Capital Metropolitan Transportation Authority © Figure 17. Cap Metro’s transit-oriented development priority tool. (Cases in which surface park & ride capacity must be replaced in a new parking structure are especially challenging, as discussed in Chapter 7.) Other factors include the need for environmental remediation or the inability to create an adequate development footprint without building on air rights. If such conditions apply, the evaluation of site suitability must take into account, at least preliminarily, whether the site’s market value is strong enough to absorb the cost premiums, or whether state or local financial incentives are available to level the playing field. B. Market demand. A second threshold question is market demand: a project will not happen unless the market supports it. Demand for a JD site is generally reflective of demand in the station area and surrounding district. Based on the research team’s developer interviews,

32 Guide to Joint Development for Public Transportation Agencies if the JD site enjoys direct proximity to a high-intensity station and has no unique cost premium issues, or if the transit agency has worked with local officials to minimize entitle- ment risk, developers may have greater interest in the specific JD site than in surrounding properties. The reverse is true as well. The underlying strength of the station area’s real estate submarket can be assessed in several ways: by conducting on-going industry outreach; by retaining a real estate consultant to follow local market trends on a continual basis; by commissioning a formal market study; or by using commercially available data on submarket behavior—such as actual development activity, trends in sales and rental price points, rent premiums due to station proximity, and local vacancy, absorption, and turnover rates. Sources such as ESRI, the U.S. Census, Woods & Poole, or Moody’s Analytics REIS Network can provide such information. C. Transit connectivity. The presence of transit in and of itself is not a distinguishing criterion, since virtually all potential JD sites are served by transit or will be once planned system enhancements are completed. However, there are variations in the type, capacity, and frequency of transit service that affect the development capacity of a given site. Large-scale TOD/JD generally favors high-capacity, high-frequency service; the demand created by a development project may require that an existing service, or the passenger infrastructure supporting it, be enhanced. Beyond frequency and capacity, two additional variables are relevant to TOD/JD readiness. One is a station’s degree of interconnection: is it served by a single line or multiple lines? Figure 18. Criteria for site readiness and prioritization.

Planning a Joint Development Project 33   Do two or more high-capacity services intersect there, providing convenient access to multiple corridors? If it is a rail or bus rapid transit station, is it also served by local bus routes? The other variable is network location. Is the station near the core of the system, where radial corridors converge, or near the periphery, with long travel times to the other side of the service area? These characteristics are reflected in ridership data as well as the “access to jobs” and “access to labor” estimates generated by the Center for Neighborhood Technology (CNT) All Transit Data Base for any location in the United States. These are estimates of the number of jobs that can be reached from a given location in a 30-minute transit commute (the transit shed), and the number of potential workers that can access a business in that same location by a similar commute.4 If a station is sufficiently development-ready to proceed to detailed site planning, the transit agency will use that next stage of the process (programming and planning) to assess the need for any required capacity or infrastructure improvements and the appropriate responsibilities for delivering and funding them. D. Jurisdictional support. The fourth criterion is the extent to which the relevant governmental jurisdictions are supportive of TOD at this location. The compatibility of existing zoning, or of zoning changes to which local authorities are committed, is one major factor. Adoption of a TOD overlay district, or a commitment to do so, is of particular value when the underlying zoning is deeply layered and would take a long time to rewrite. Beyond zoning is the extent to which concrete plans and policies favor development in general and TOD in particular. Is there a plan targeting the area for development? Are economic development, afford- able housing, or brownfield remediation programs prioritized to this district (or to locations like it, or to TOD opportunities)? Is the site eligible for new market tax credits or in an opportunity zone? Does the municipality use tax increment financing to support TOD, and is it expected to do so here—either to reduce the tax burden on future development or to finance needed infrastructure? When multiple sites appear development-ready, the agency may have to prioritize. What is the JD program’s practical (or board-imposed) limit on the number of sites that can be effec- tively processed in a given cycle? Which of the ready sites are the best bets at this time? Sites that are ready today may be more ready 2 or 5 years from now—with more established market value, greater community support, or more transit connectivity than they now enjoy. Finally, for sites that appear ready to advance, it is important to determine whether there is an FTA real property interest. Ideally, this information was already flagged in the inventory of potential sites described in Chapter 2. If there is an FTA interest, staff should study FTA’s Joint Development Guidance (C-7050.1B) and Award Management Circular (C-5050.1E) to ensure that all requirements are understood. The presence of an FTA interest is generally not an impediment to JD and may open the opportunity to proceed as an FTA-Assisted Joint Devel- opment project. If the transit agency wishes to advance a site, it is advantageous to discuss it early and informally with the FTA Region. The FTA process, if applicable, is addressed in Chapter 6.5 3.3 Predevelopment Site Planning Once the agency determines that a site is ready to advance, it is best practice to undertake predevelopment site planning. This should precede and inform a “go/no-go” decision to issue a developer solicitation—providing agency leadership with the analysis they need to support a solicitation and with critical content for the eventual solicitation documents. Predevelopment site planning is intended to create planning parameters for the potential JD project, including its relationship to the transit infrastructure. The ideal result is a set of site-specific DRGs, with

34 Guide to Joint Development for Public Transportation Agencies an appropriate mix of prescriptive and flexible elements. As discussed in Chapter 4, the DRGs then become part of the solicitation documents. The goals of predevelopment site planning are to: • Assess existing conditions with regard to their suitability for JD; • Assemble quantitative requirements with regard to the transit and development facilities to be accommodated on the site; • Explore the potential characteristics of the development to demonstrate its overall feasi- bility; and • Demonstrate the impacts of the development and achieve consensus among internal and external stakeholders. This discussion assumes a JD project at an off-street, fixed-guideway station (that is, rail or bus rapid transit) with multi-modal access including feeder bus routes. These same principles should be incorporated, as applicable, in the planning process for other JD settings. Assess Existing Conditions As in any project, the planning process commences with collection and analysis of existing site conditions. Site Definition. In most cases, the development site will not comprise the entire station property, and it is important for both internal and external stakeholders to reach consensus on which portions of the property will—and will not—be made available. The agency team should prepare a consolidated site plan that clearly delineates the boundaries of the development site in the context of other agency-owned property, including the area and legal definition of affected parcels and easements. It should be understood that subsequent analysis may result in modifica- tions of the proposed site. Engineering and Environmental Scans. Existing utilities, subsurface conditions, and known environmental constraints (such as wetlands, floodplain, cultural resources, or hazardous materials) may need to be identified at a more detailed level than was done in the earlier site suitability assessment. Particular attention should be devoted to existing transit infrastructure that could influence the site plan, such as tunnels, substations, ancillary facilities, or duct banks. The scan should also identify the required vertical and horizontal clearances for these elements, consistent with the agency’s adjacent construction standards. Traffic Assessment. The agency team should conduct a quantitative or qualitative review of existing pedestrian, bicycle, and vehicular traffic movements on and around the station site during peak AM and PM operations. The review should identify existing traffic conflicts, capacity constraints, circulation issues, and conflicts between different modes. The assessment should cover station-related circulation both within the station site and on surrounding streets and walkways, particularly existing site entrances used by transit vehicles or passenger cars, bearing in mind that the JD site could require separate entrances. Programming and Planning Concurrently with the existing conditions analysis, the agency should begin developing a comprehensive program for the site, covering both transit functions and private development. Figure 19 provides an overview of this process. The site program is a key planning tool that can be continually updated through the predevelopment process.

Planning a Joint Development Project 35   Step 1. Assess and inventory transit and development demand. This initial stage projects transit patronage and access needs as well as the market demand for private development. • Multi-modal demand analysis. Long-range demand analysis is a critical input to the JD site plan to ensure that the plan accommodates future ridership, including that generated by the planned JD. The analysis should project future ridership by access/egress mode and time of day. These projections may have been compiled previously by the agency or can be derived from new modeling, updated to reflect the TOD/JD market demand assessment described below, with an emphasis on transit as a primary means of connecting to other destinations and origins. The analysis should take into account all major trip types associ- ated with the site, including but by no means limited to the traditional peak directional radial daily work commute. The multi-modal analysis may also reveal that the station will need internal capacity improve- ments (such as new entrances, vertical circulation, or additional faregates) to accommodate increased ridership. These improvements could be made part of the JD project or implemented by the agency as a separate project. • Development market assessment. As described in Section 3.2, a preliminary market demand assessment may already have occurred as part of the site readiness determination. To the Conduct "test fit" studies to assess physical feasibility. Use the findings to refine the Joint Development Program and identify project configuration parameters for later stages of design and construction. Prepare Development Requirements and Guidelines based on the Joint Development Program, test fit, and confirmed feasibility parameters. "Right-size" the parking program. Assess demand for transit patronage and access and for private development. Establish a Preliminary Joint Development Program. Figure 19. Joint development programming and site planning process.

36 Guide to Joint Development for Public Transportation Agencies extent that has not occurred, it should be done now. This analysis provides site planners with key inputs regarding program quantities and land uses to be assumed for planning purposes, particularly the development of “test fit” scenarios. These results should be reviewed against zoning restrictions. Ideally, the agency and munici- pality will already be collaborating to enact transit-supportive development policies for the site or intend to do so once a preliminary development program is in hand (see Section 3.4). In other cases, the limitations of existing zoning will quickly become apparent, and the agency team will need to develop and apply prudent assumptions for planning purposes. Step 2. Right-size the parking program. As discussed at length in Chapter 7, parking for private automobiles is a key planning consideration in JD. The TOD principles advocated in this guide discourage unnecessarily large parking facilities. That said, park & ride remains a necessary component of transit system access at many stations outside the urban core, and many agencies rely on parking revenues to help offset operating costs. On the residential and commercial side, many developers, lenders, and local officials have come to embrace a reduc- tion of traditional parking requirements as one of the primary economic and environmental benefits of TOD. The opportunity to right-size parking, both for the development program and, where applicable, for park & ride, occurs during this predevelopment site planning stage. The output from the multi-modal demand and zoning analyses described above should be scrutinized and adjusted to ensure that parking constructed for the project represents a responsible and economical solution. Strategies include: • Conduct a site-specific analysis to determine how much of the station’s existing park & ride supply should be replaced, based on the all-in net ridership/net revenue analysis discussed in Chapter 7; • Consider relocation of park & ride to adjacent stations; • Set parking parameters for the development program that recognize the transit, pedestrian, bicycle, and market attributes of the site; and • Examine the potential for shared parking serving both transit and development. Step 3. Establish and evaluate a preliminary JD program. Based on the multi-modal demand analysis, development market results, and parking adjustment strategies, document a target program, including: 1. Development floor areas, allocated by land use; 2. Development parking quantities in dedicated or shared spaces (recognizing that parking ratios which differ from current zoning would require rezoning or zoning relief); 3. Bus bay quantities; 4. Bicycle quantities; 5. Pickup/dropoff quantities, expressed as number of spaces or as a length of dedicated curbside space; 6. Park & ride quantities; and 7. Transit facilities to be relocated, eliminated, or upgraded, or for which future expansion space is to be protected (if known). At this stage, quantitative information is best presented in ranges, to allow site planners flexibility in identifying a range of site strategies. The preliminary JD program is an important tool for both internal coordination and external outreach and will be helpful as an input to construction cost estimating and land value analyses. The JD program will also form the basis for test fit studies.

Planning a Joint Development Project 37   Step 4. Use the JD program as the basis for test fit studies. Test fit studies provide an important means of applying, testing, and evaluating the JD program. These studies explore the potential characteristics of the development so as to demonstrate the overall feasibility of devel- opment, and its impacts on the station site and surrounding community. Test fit plans serve as a platform for site plan concepts and circulation strategies. The goal of the test fit exercise is to explore possibilities and test ideas, not to create a single, prescriptive solution. The plans should be developed to a conceptual level, as shown in the example of Figure 20, with the following content: • Building massing for both transit facilities and proposed development, depicted without detailed treatment of facades (interior building plans need be developed only to test the fea- sibility of smaller projects on highly constricted sites); • Parking facilities for transit and development; Washington Metropolitan Area Transit Authority © Figure 20. Example of a test fit site plan.

38 Guide to Joint Development for Public Transportation Agencies • All station boarding facilities with existing and new entrances, as applicable; • Development, pickup/dropoff, and park & ride facilities, presented at a level of detail sufficient to verify capacity against the JD program; • Proposed public-use open space; • New and existing bicycle facilities; and • Roadways and ped-bike paths within and adjacent to the site (potential and proposed modifications to existing roadways and traffic signals should be identified). The test fit studies should observe agency design criteria, and planners should take note of the facility planning principles discussed in the next section. Through the test fit process, the agency will gain an understanding of the site’s key opportunities and constraints, allow internal and external stakeholders to visualize the tangible impacts of the project, and achieve consensus on what does and does not work. The findings of the test fit studies will help the agency frame site-specific policies for development, information passed along to potential development partners in the form of DRGs. Step 5. Create DRGs. Based on the findings of the test fit studies, the agency should refine the JD program for inclusion in the site-specific DRGs. Policies or quantitative information (such as square feet of development uses or number of parking spaces) should be presented in a way that protects agency and community interests while allowing proponents reasonable flex- ibility to respond to market forces and develop creative solutions. The physical site plan should clearly distinguish between those elements that are fixed (because they are integral to a transit planning need, for example) and those that are flexible, so that the eventual bidders understand these parameters. Planning Principles While a full and detailed discussion of site planning practices is beyond the scope of this guide, the research team’s experience provides some insights into planning issues frequently encountered in JD projects. Each site and project is unique, and these principles will apply differently in each setting. Site Access. In Chapter 2, it was recommended that as part of their official TOD/JD policies, transit agencies adopt a planning framework that recognizes a station’s circulation, loading, and vehicle storage capacity as a limited resource to be allocated among the different modes of accessing the station. Several agencies, such as BART and WMATA, have made such a multi- modal approach part of the agency’s published design criteria. A hierarchical listing is frequently accompanied by maximum walking distances, measured from the station entrance. With minor variations among agencies, such policies establish the following general priorities for the primary station access modes; the hierarchy is illustrated by the BART graphic in Figure 21: 1. Pedestrians; 2. Bicycles; 3. Transit buses; 4. Taxis and transportation network companies (TNCs); 5. Public-access pickup/dropoff facilities; and 6. Parking for transit and development. JD interacts with this hierarchy in several ways. First of all, the people who live, work, shop, or obtain services in the development buildings are actual or potential transit customers who access the station as pedestrians; their ability to do so should be convenient and pleasant. Second, these people are also potential bus, bicycle, and taxi users, and planning for those facilities should take them into account. Finally, the placement of JD buildings may impact the location of, and

Planning a Joint Development Project 39   access to, park & ride garages, bus berths, or dropoff areas. The site plan should optimize safety and convenience for all, recognizing that a project’s specific configuration and constraints may require tradeoffs when it comes to intermodal walking distances. The site design criteria of many transit agencies strive to separate transit buses from private automobile traffic. A primary reason is to protect feeder bus service reliability by minimizing conflicts between buses and cars. The introduction of JD will almost always put pressure on site access capacity by adding private automobiles as well as truck and delivery traffic not normally encountered on a transit site. On smaller sites, it may be difficult to maintain separate entrances for buses and private cars. Bus Facilities. Many fixed-guideway transit stations are served by multiple bus routes, which act not only as feeders for the rail system but as an important means of travel to and from the JD and the surrounding area. A JD site plan may need to accommodate bus passenger Image: San Francisco Bay Area Rapid Transit District © Figure 21. BART station access hierarchy.

40 Guide to Joint Development for Public Transportation Agencies boarding, which can occur either on- or off-street. Usually operational criteria govern this choice, but in a JD/TOD setting, urban design considerations come into play as well, with pros and cons for each solution. On-street bus bays are generally suitable for stations served by fewer than four to six bus routes. From an urban design standpoint, on-street bus operations may be more supportive of a traditional, pedestrian-scale street grid, but it is important to note that dwelling buses can obstruct views of ground floor entrances and retail windows and may make the streetscape less appealing to pedestrians. For this reason, streets with curbside bus bays should be provided with wide sidewalks to allow passenger shelters and queuing to coexist with other pedestrian traffic. This approach also provides some perceptual breathing room for on-street retail. On-street bus facilities accommodating larger numbers of buses should be avoided if possible, as they perform poorly and do not provide a good experience for connecting passengers. For stations served by more than four to six bus routes, off-street bus bays are generally warranted. These facilities are typically separated from other traffic and at terminal stations are arranged to allow buses to recirculate after discharging passengers, preferably without entering general traffic. The result, by necessity, is an expanse of paved open space at-grade, close to the station entrance. While landscaping and artwork may provide visual relief, the character and scale may detract from a TOD setting. These impacts can be addressed by placing the off-street bus facility above grade (as at Boston’s South Station) or below grade, as at Denver Union Station (see Figure 22). Grade-separated solutions are far more costly than simple, at-grade construction and are generally practical only for large bus facilities (Denver’s has 22 gates), but they enable excellent operational outcomes without dominating the public realm. Overbuilds. A JD project may be constructed on air rights directly above a transit station, guideway, or ancillary facility (such as a ventilation shaft). Such overbuilds are complex, and their expense is justified only when terra firma is scarce and the market is strong enough to support the cost premiums. As of 2020, there are a relative handful of recent or actively planned Skidmore, Owings & Merrill © Red Square Figure 22. Denver Union Station bus facility.

Planning a Joint Development Project 41   air rights overbuild projects, including Chicago Union Station, Philadelphia 30th Street Station, Boston’s North and South Stations, New York’s Hudson Yards and proposed Sunnyside Yards deck-overs, the Miami Omni Bus Terminal, and the Potrero Yard modernization and redevelopment plan in San Francisco. Regardless of the uses involved, any air-rights development will require grade-level facilities for lobbies, elevators, and stairs, as well as a loading and service area. More importantly, access will be required at grade for development users arriving on foot or by private automobile and for delivery and trash removal trucks. These at-grade features must be coordinated with the transit facility, and on a constrained site it can be challenging to provide proper access to both transit and development functions. While air-rights construction is more expensive in general, building a project above an operating transit facility is exceptionally so. Overbuild projects are highly sensitive to construc- tion phasing and scheduling, and, if the transit facilities below are new or being reconstructed, it will almost always be more economical to construct both at the same time through an integrated master plan and master schedule. Construction above or adjacent to an operating station or guideway normally requires protective screening, overhead protection, and restrictions on crane placement and movements and may be limited to non-revenue hours, reducing efficiency and raising costs. For development to be constructed directly above or adjacent to existing tunnels and below- grade structures, a structural analysis is necessary to determine the effects on loading conditions that would result from the new construction. Complex foundation systems are often required, which are economically feasible only for very large urban development projects. Construction of an overbuild requires careful attention to ventilation of the transit facility. Whether an entirely new project or new construction around an existing facility, enclosed stations and guideways require ventilation for both normal and emergency operation. Depending on the configuration of the project and the type of transit vehicles involved, this ventilation may be provided through passive design measures or mechanical ventilation systems. These consid- erations have significant cost, safety, and security implications that must be addressed early in the planning process. Retail. Retail is uniquely important in transit- and pedestrian-oriented placemaking. However, planning for successful retail requires careful attention to target markets and physical design. A JD project has the potential to attract a combination of transit passengers, neighbor- hood residents, and people who live, work or shop in the proposed development. Nonetheless, as the retail market shifts toward on-line shopping and delivery, the urbanist ideal of continuous street-level retail is not always achievable, and requiring it as part of a JD project can become a highly visible mistake. A large, mixed-use project in an already dense location may attract retail customers from all three markets; other projects support retail demand generated by the development itself; small projects may support only minimal retail. The developer interviews conducted for this guide suggest that in today’s market, brick and mortar retail—in transit settings as much as anywhere else—is gravitating to the convenience market at one end and the high quality destination or experiential market at the other. In a JD project, the transit agency usually transfers some or all of the retail risk to the devel- oper and should be prepared to rely on their commercial expertise. The DRGs should identify those locations where TOD placemaking and the transit passenger experience make retail most desirable and encourage the proponents (and the eventual developer) to create the most robust retail program they feasibly can at that station.6

42 Guide to Joint Development for Public Transportation Agencies 3.4 Community Acceptance Relation with Local Land Use Authorities The transit agencies and local land use jurisdictions surveyed for this guide generally shared positive and mutually consistent views with respect to TOD/JD. Most described the relationship as substantive and collaborative, and in the markets where both the transit agency and a local jurisdiction were interviewed, they expressed congruent perceptions of each other’s engagement in TOD/JD activities.7 The importance of collaborating with local government cannot be overstated. On the regula- tory side, a partnership with the local jurisdiction is usually essential in securing community buy-in and aligning zoning and other entitlement outcomes with a viable TOD/JD project. The need for collaboration arises both in the planning stage (as discussed in this section) and in the entitlement and permitting steps that remain after a developer is selected (see Chapter 5). Jurisdictional support also extends to the financial side of successful TOD/JD. The strategy of enhancing project feasibility through the use of gap-closing incentive programs, discussed in Chapter 7, depends on collaboration and proactive communication. All the local jurisdictions in the survey described themselves as having embraced TOD as a priority, many in foundational terms. Almost all have adopted official TOD policies, and several have gone further, creating ambitious TOD initiatives. With respect to zoning, the cliché that “TOD is illegal”—because traditional zoning did not allow transit-supportive density, by-right mixed-use development, form-based urban design, and reduced parking ratios—is yielding to a more compatible approach. Land use jurisdictions have taken steps to reform their zoning ordinances or rezone TOD priority areas, including sweeping changes in cities as different as Charlotte, Phoenix, Boston, Los Angeles, and Carrollton, Texas. As shown in Figure 23, Charlotte’s comprehensive 2019 TOD rezoning covers the existing Blue Line light rail corridor as well as the future light rail and bus rapid transit corridors being planned by the Charlotte Figure 23. Charlotte’s 2019 transit-oriented development rezoning initiative.

Planning a Joint Development Project 43   Area Transit System.8 With respect to the TOD fundamentals, local jurisdictions, at least in the active TOD markets represented in the survey, generally see station area zoning as good or getting there. While transit agencies broadly shared these perceptions, their responses recognized that their service areas encompass numerous zoning jurisdictions (in some cases, dozens). Often, the central city and one or two other municipalities are described in positive terms with respect to TOD planning and zoning, with other suburban communities less so. Underlying the policy direction of local jurisdictions is the outlook that neighborhood residents and other community stakeholders bring to TOD. In the survey, local officials and transit agencies generally agreed that community perceptions of TOD have evolved in a positive, more accepting direction. Nonetheless, it is still common for a TOD project to raise concerns about height and density, construction period impacts, community character, traffic, or spill- over parking (the fear that the reduced parking associated with TOD, rather than shifting trips to transit, will simply force commuters to park on local streets). TOD projects that include affordable housing may be seen as providing too much of it by some stakeholders and too little by others. Vetting Projects Prior to Solicitation For transit agencies planning JD projects, a key question is when and how to approach local officials for buy-in and support. It is advantageous to do so through a collaborative planning process undertaken before the developer solicitation is launched. Such a process serves two purposes: • By working with the municipality, and through them with community stakeholders, the transit agency can align the project’s design and development guidelines with community expectations. This reduces the level of entitlement risk and enhances the appeal of the developer solicitation to potential respondents. • If the JD project in question would benefit from zoning amendments or other local regulatory changes—either to enhance its financial feasibility or to better align it with TOD principles— there is normally an advantage in raising this request before launching the solicitation process. If there is a reasonable chance that such approvals can be secured prior to solicitation, it is advisable to take the extra time to pursue them. (This strategy is referenced in the discussion of JD economics in Chapter 7.) Most of the transit agencies surveyed for the guide reported that they do engage with the host jurisdiction and community stakeholders during the planning stage of a JD project. This engagement may be substantial, addressing major planning issues that frame the project. For example: • MARTA now engages the host municipality and station area community prior to issuing a developer solicitation, so as to advance projects with a high likelihood of entitlement and permitting success. • WMATA has worked with local jurisdictions to align zoning with potential JD, and where such alignment exists may collaborate with jurisdiction staff in preparing the DRGs for the project. • UTA’s Station Area Planning Phase, a formal pre-solicitation requirement of its TOD/JD policy, is a structured partnership with the municipality and the MPO. • The MBTA and Massachusetts DOT partnered with Boston Redevelopment Authority to secure comprehensive TOD zoning for the Bulfinch Triangle district near North Station; the subsequent JD solicitations resulted in projects that were expeditiously entitled and permitted.9

44 Guide to Joint Development for Public Transportation Agencies A best practice approach is exemplified by LA Metro, which collaborates with the city and community to create site-specific development guidelines prior to (and for inclusion in) any JD solicitation. These guidelines, illustrated in Figure 24, reflect the most recent applicable city plans, which were themselves developed through a community process.10 Even if zoning and other key regulatory issues have been advanced prior to solicitation, there will almost always be additional entitlement work to be done once the developer is on-board. That later stage of the approval process, and how transit agency and developer may choose to manage it, is discussed in Chapter 5. 3.5 Parameters of Potential Transaction The details of a JD transaction generally emerge in the selected proposal and are refined in the subsequent negotiations. However, it is in the transit agency’s interest to set the broad parameters of the transaction while the project is still being planned. In addition to the expected financial return (discussed in Chapter 7), two key parameters should be thought through sufficiently to be addressed in the solicitation documents:11 • The method of conveyance—how the JD rights will be transferred to the developer; and • The roles and responsibilities of the parties. Method of Conveyance In order to implement a JD project on transit agency property, the property in question, or at least the rights to develop it, must be conveyed to the eventual developer. The precise terms of this conveyance will be spelled out legally, in the joint development agreement (JDA) and/or the actual conveyance instrument (such as a lease or deed of sale). Long before that point, how- ever, it is important for development teams bidding on the project to understand the method of conveyance intended by the transit agency. Figure 24. LA Metro Expo/Crenshaw development guidelines.

Planning a Joint Development Project 45   As noted in Chapter 2, it is strongly recommended that the agency have a general policy on method of conveyance, and that this policy, with whatever flexibility it entails, inform the parameters of individual projects. These parameters can then be stated in the developer solicita- tion (described in Chapter 4). The common methods for conveying JD rights fall into six broad categories. Their distribution among the 32 transit agencies surveyed for this guide is summarized in Table 3. • Long-term lease. JD leases of surface parcels (ground leases) are long enough (generally 50 to 99 years) to accommodate the financing of the private development as well as future refinancing, sale, or other capital events associated with the type of development in question. Long-term leases are often structured in multiple tiers, described more fully in Chapter 5. The landlord (in this case the transit agency) may receive a base rent; a percentage rent based on the project’s downstream performance; and a share of any sale or refinancing proceeds. Subject to any exceptions written into the lease, the developer gains the right to develop and manage the parcel, to own the buildings and other improvements to be created, and to use those buildings and improvements as collateral for project financing. Although the developer pays the real estate taxes and other on-going costs associated with the parcel, the landlord continues to own the land, and at the end of the lease term the improvements revert to the landlord’s ownership as well. The ground lease must provide certain rights to the lender, in order for the developer to secure loans to construct and maintain the buildings. However, it is not recommended that agencies subordinate their interests in the land itself, risking foreclosure of a public asset; see further discussion in Chapter 5. A long-term lease can also be used for the redevelopment of an agency-owned building. The historic station building at Denver Union Station, for example, was adaptively reused as a retail and restaurant destination, hotel, and public concourse area, based on a 60-year development lease (with renewal options extending to 99 years) from Denver RTD to a private developer. • Air rights lease. Agencies can also lease the air rights above their transit facilities. Devel- opable air rights may occur, in principle, above tracks and busways, parking lots, concourses, or any other facility where an improvement exists, or where the surface must remain available up to a certain height for current or future operations. In situations where a rail or roadway operates in an open cut or “boat section,” the air rights above that alignment might begin Method of Conveyance Agencies Using Method Agencies Expressly Preferring Method Long-Term Ground Lease 27 19 Long-Term Air Rights Lease 3 n/a Long-Term Lease of Station Building 5 n/a Outright Sale 19 2 Equity Participation 2 1 Commercial Lease (Concessions, etc.) 17 n/a Other (connection easement, station built by abutter, land swap, lease of parking, etc.) 14 n/a Based on interviews and surveys of 32 transit agencies and further research on their JD projects. Totals exceed 32 because several agencies use multiple methods. Table 3. Joint development transaction types among 32 transit agencies.

46 Guide to Joint Development for Public Transportation Agencies at or near the adjoining surface grade.12 Air rights leases, like ground leases and for similar reasons, are usually long-term. Air rights development is complex and costly and tends to be feasible only in strong markets. • Outright sale. Transit agencies also sell development parcels outright or in “fee simple.” This is normally the simplest and least time-consuming form of conveyance and may be preferred by a developer or its lender. For reasons discussed below, it is generally not the preferred or recommended practice from a transit agency’s perspective. It is theoretically possible for air rights as well as surface parcels to be sold rather than leased, but considerations of risk and control usually dictate that air rights development be on a leasehold basis. (In cases where developable air rights are owned rather than leased, this arrangement is likely to have resulted from the original assembly of the site by legislative or municipal action, as is the case at Boston’s North and South Stations.) • Equity participation. As an alternative to lease or sale (and if allowed to do so under its enabling act), a transit agency may enter into a joint venture, limited partnership, or limited liability company (LLC) with the developer. The agency, as land or building owner, contributes the property (and, where applicable, the value of its standing with local land use authorities and relevant federal or state agencies). As in any project joint venture, partnership, or LLC, the transit agency retains a negotiated equity stake commensurate with the property value and other considerations. The Utah Transit Authority (UTA) has adopted the equity participation model as its principal method of organizing JD transactions; the majority of UTA’s projects are structured as joint ventures. The Memphis Area Transit Authority (MATA) used a limited partner- ship consisting of itself, the master developer, and a historic tax credit investor, to under- take the initial redevelopment of Central Station two decades ago, a concept since replicated elsewhere. • Commercial leases. These may be used when a transit agency leases specific premises in an agency-owned building, either to an individual tenant or to a master lease developer, who will improve a set of commercial spaces, sublease them to individual tenants, and manage the commercial area of the station. Commercial leases are of sufficient duration for the tenant or master lease developer to finance the costs of improving the space, but not nearly of the length associated with long-term ground or building leases. • Easements. These are non-possessory rights to use another party’s real property for a specific purpose, either for a defined period or in perpetuity. Easements are seldom used as the primary means of conveying development rights, but they often accompany a ground lease, air rights lease, or deed of sale. A variety of easements occur in JD settings. Permanent easements may be used to accom- modate a specific physical element of a project, such as a station connection built by an adja- cent developer or, in an air rights overbuild, the elevator, stair, and ventilation shafts of one ownership layer penetrating the space of the other. Temporary easements are used for construction staging. Permanent use or access easements allow individuals associated with the transit station or the JD to routinely enter, use, or pass through the property of the other party, whether for routine daily activity or to gain access for purposes of inspection or repair. The most common methods of conveying transit property for JD are long-term leases and outright land sales. As a matter of policy, most of the agencies surveyed for this guide stated a clear preference for long-term leases, and as noted in Chapter 2, this stated policy is recommended as a best practice. The equity participation model adopted by UTA, although not yet in widespread use and not legally available to every transit agency, combines key elements of financial participation and institutional control and could emerge as an alterna- tive best practice.

Planning a Joint Development Project 47   The long-term lease and joint venture models, although very different, share two key advantages from a policy standpoint: • A durable ownership interest in the development site, of which the agency is a steward; and • An economic position that, if well negotiated, will reward the agency for the development project’s performance over time. The arguments for outright sale gravitate toward three particular circumstances: • Developers sometimes maintain that a leasehold creates a hurdle in attracting equity or debt, particularly with respect to for-sale housing. In much of the United States, for-sale housing has proven financeable on a long-term leasehold, but in some regional markets this is still understood as a genuine barrier. (On the other hand, if a long-term lease works at all, it has the benefit, from the developer’s perspective, of removing land acquisition as a front-end capital cost.) • If the transit agency intends to use the JD proceeds to fund a capital improvement, it may prefer an outright sale so as to collect the full price up-front. (However, since agencies always need additional operating funds, a lengthy stream of escalating lease payments is attractive as well. Moreover, a lease can be structured to include a significant front-end payment.) • If the parcel in question is a small construction remnant, or is to be combined with that of an adjacent landholder to create a larger and more viable site, or is not located in a station area, then a simple sale may be the most efficient way to proceed. As part of the pre-solicitation planning process, the transit agency should determine whether the most appropriate method of conveyance for the project in question is a long-term lease, a sale, a joint venture, or a more specialized alternative. If the stated preference is a long-term lease, it is recommended that a sale be considered only on a docu- mented showing that it is required to achieve financeability. A complex project may include multiple methods of conveyance, corresponding to different parts of the site. A major hub station project, for example, could involve a ground lease for a surface lot, an air rights lease for a section of the tracks, and a long-term building lease and/or a commercial lease for the interior retail and common areas. Several large urban transit agencies as well as Amtrak, which is pursuing JD at its legacy stations in Chicago, Philadelphia, and Baltimore, have confronted just such a jigsaw puzzle. Roles and Responsibilities Finally, the transit agency should use the pre-solicitation planning stage of the project to consider what, if anything, the eventual developer will be expected to do beyond making their sale or lease payments and delivering a first-class development project. It is common for JD projects to include other types of developer obligations: • To deliver (i.e., to design and/or construct) elements of the station or its ancillary facilities. The developer might be required to do this because the improvements in question are a physical or operational precondition to building the private development; because they are physically interwoven with the private development; or because it is more efficient for a single set of designers and contractors to work on the site. The developer’s team would be required to perform this work under the oversight of the transit agency and consistent with its design standards and adjacent construction rules (see Chapter 5). • To operate and maintain certain station elements once the project is complete. For example, if surface park & ride capacity is replaced in a new garage that is shared with the JD uses, the agency may choose to have the entire facility run by the developer’s parking operator. If the stated preference is a long-term lease, a sale should be considered only if documented that it is required for financeability.

48 Guide to Joint Development for Public Transportation Agencies A developer might be tasked with the operation and maintenance (O&M) of the concourse and retail common areas of a station building, performing routine sidewalk cleaning, ice and snow removal, and light bulb replacement. • A developer might be required to pay for some or all of the work that they are called on to deliver or maintain. Such obligations are referred to in this guide as in-kind contributions or in-kind obligations. As illustrated in Figure 25, the questions of who designs and builds a station element, who operates and maintains it, and who pays for it do not necessarily have the same answer; they can be mixed and matched. The choice of “who does what” depends on the physical, operational, and institutional details of the project site. The choice of “who pays for what” depends on the larger finances of the project, as discussed at length in Chapter 7. Actual JD projects have used virtually every imaginable configuration. Germane to this discussion is the difference between JD and public-private partnerships. The term P3 is often used imprecisely and lacks a single, uniform definition, but its prevalent meaning in the literature and the market is a transaction in which a private party agrees to fund, deliver, and operate a facility or service that is traditionally the responsibility of a public agency.13 P3s occur in the transportation market in projects like toll roads, airport terminals, and an occasional passenger or freight rail line; these are projects in which development rights, if any, are incidental to the larger facility or service. Most JD projects do not fit this pattern, and if they are called public-private partnerships, the label is applied in the broadest and most colloquial sense. (Notably, two recent rail transit P3s in the United States—the Eagle commuter rail in Denver and the Purple Line in Maryland—do not include any real estate development rights.)14 That said, a JD project in which a developer funds a station element, delivers it, and maintains it going forward may sometimes be a P3 as well. This pattern may occur in a complex hub station redevelopment (see Section 8.2), in which a master developer agrees to build, fund, and maintain parts of the publicly owned facility. Endnotes 1. See UTA’s Standard Operating Procedures, especially the “TOD System Analysis” tab (https://www.rideuta. com/Doing-Business/Transit-Oriented-Development/Standard-Operating-Procedures). Figure 25. Potential developer responsibilities for station elements.

Planning a Joint Development Project 49   2. Cap Metro: see the “TOD Priority Tool” at https://www.capmetro.org/tod/; NOACA: see https://www. noaca.org/home/showdocument?id=19936. SANDAG: https://www.sandag.org/uploads/projectid/projectid_ 500_19063.pdf. 3. The criteria can be used to evaluate entire station areas or individual sites. A station area may be “ready” because it ranks high on market demand, transit connectivity, and jurisdictional support and has one or more suitable sites. Other sites in that same station area, however, may not be suitable because of site-specific physical, legal, or other constraints. 4. https://alltransit.cnt.org/. 5. As noted at the beginning of Chapter 6, FTA policy broadly supports joint development as defined in this guide, whether or not FTA JD jurisdiction applies, in order to maximize the utility of FTA-assisted transit assets. 6. Solutions might include deploying corner retail at important intersections with housing entries in between. A ground floor might also be designed as flex space, so that it can transition to retail if and when market conditions warrant. 7. In all but one of the 13 markets where both the transit agency and the city were surveyed, both offered a generally positive view with respect to planning and zoning relative to TOD. 8. The Charlotte TOD zoning districts are described in the zoning document: https://charlotteudo.org/ wp-content/uploads/2020/02/TOD-ZoningOrdChapter15_corrected_02_2020.pdf. For the larger policy context, including the major implementation step of “alignment rezoning,” see: https://charlotteudo.org/ transit-oriented-development/. 9. Bulfinch Triangle: Boston Planning & Development Authority, Trinity Financial, and MBTA interviews; http://www.bostonplans.org/getattachment/ead950a8-0fbd-46b6-8772-721cd0d634e6. 10. LA Metro Joint Development Policy: https://media.metro.net/projects_studies/joint_development/images/ jdpolicy_2016-1201.pdf. Crenshaw/Expo Development Guidelines: https://media.metro.net/projects_studies/ joint_development/images/CLAX_JD_ExpoCrenshaw_Development_Guidelines_2017-0106.pdf. 11. As discussed in Chapter 4, the consideration of these parameters during the project planning stage is appropriate even in cases where the selection is to be based solely on a Request for Qualifications (RFQ). 12. The traditional definition of air rights includes all empty space above the surface of a property; on a vacant site, this would make an air rights lease effectively the same as a ground lease. For purposes of this discussion, “air rights” are located above some existing or future improvement and do not, other than incidentally, include surface development rights. 13. Macek et al., 2017; Friedman, 2016 (see Appendix E). 14. See an informative discussion defining P3 and distinguishing it from joint development on the FTA website at https://www.transit.dot.gov/funding/funding-finance-resources/private-sector-participation/private- sector-participation-and.