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Joint Development Agreements Using FTA Funds or FTA-Funded Assets (2021)

Chapter: II. FINDINGS AND APPLICATIONS FROM STAKEHOLDER INTERVIEWS

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Suggested Citation:"II. FINDINGS AND APPLICATIONS FROM STAKEHOLDER INTERVIEWS." National Academies of Sciences, Engineering, and Medicine. 2021. Joint Development Agreements Using FTA Funds or FTA-Funded Assets. Washington, DC: The National Academies Press. doi: 10.17226/26268.
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Suggested Citation:"II. FINDINGS AND APPLICATIONS FROM STAKEHOLDER INTERVIEWS." National Academies of Sciences, Engineering, and Medicine. 2021. Joint Development Agreements Using FTA Funds or FTA-Funded Assets. Washington, DC: The National Academies Press. doi: 10.17226/26268.
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TCRP LRD 56 11 • Title 49 U.S.C. § 5339 (Bus and Bus Facilities Formula Grants). Pilot Program for Transit-Oriented Development Planning) • Better Utilizing Investments to Leverage Development (BUILD) Transportation Grants Program (formerly TIGER)64 Most states also offer programs to fund transit projects with TOD/JD elements, and local MPOs and transit authorities also have varying mechanisms, including direct taxation. Other fed- eral agencies, such as the EPA and HUD, offer grant funding for JD-related activities, such as smart growth planning or afford- able housing development, but do not offer funding that directly supports TOD/JD construction activities. a. Agency Authority to Sponsor and Invest in TOD/ JD Projects FTA C 7050.1B addresses FTA’s authority and the eligibil- ity of grantees (states, transportation/transit authorities of the states, metropolitan planning organizations, local government authorities, and transit agencies), noting that “most federal transit laws are codified at 49 U.S.C. Chapter 53. Authorizing legislation is substantive legislation enacted by Congress that estab lishes or continues the legal operation of a federal program or agency. FTA’s most recent authorizing legislation is the Fix- ing America’s Surface Transportation (FAST) Act, Public Law 114–94, signed into law December 4, 2015, and effective on October 1, 2015.”65 II. FINDINGS AND APPLICATIONS FROM STAKEHOLDER INTERVIEWS Fifteen transit agencies/authorities were interviewed about their past, current, and future planned JD efforts, in order to obtain a better understanding of how the FTA’s JD program is working “on the ground” for transit agencies across the country. Stakeholders were selected with the aim of obtaining a represen- tative cross-section of agencies from across the U.S., represent- ing metro areas of differing sizes, at differing rates of growth, with a variety of different development challenges, assets, and levels of involvement with the FTA’s JD program. The final list of transit agencies interviewed is as follows: 1. Dallas Area Rapid Transit (DART) 2. California Commuter Rail, San Francisco Bay Area, CA(Caltrain)) 3. Los Angeles Metro Transit (LA Metro) 4. Massachusetts Bay Transit Authority (MBTA – Greater Boston, MA) 5. Indianapolis Public Transportation Corporation (IndyGo) 6. Niagara Frontier Transit Authority (NFTA) 64 U.S. DOT, About BUILD Grants, https://www.transportation. gov/BUILDgrants/about. 65 FTA C 7050.1B, pp. I-1-I-2. Most planning for JD is conducted at the local/regional level. Planning and zoning on a local level is enabled by two stan- dard state enabling acts published by the U.S. Department of Commerce in the 1920s—the Standard State Zoning Enabling Act (SZEA)62 and the Standard City Planning Enabling Act (SCPEA).63 Recently, transit agencies such as WMATA and Austin Capital Metro are working more closely with local juris- dictions to tie plans for higher-density, mixed use development to transit stations/nodes. While not all these plans are for FTA- assisted JD projects, the implementation of JD projects often arise from planning partnerships between transit agencies/ authorities, metropolitan planning organizations, and local juris dictions. Because JD projects are often complex and in- volve a large number of stakeholders, local and regional buy-in, coopera tion, and collaboration is critical for implementation. 5. Public Funding for TOD and JD The FTA does not currently have a specific grant program targeted for JD, but there are a variety of FTA capital grant pro- grams that may be used by grantees to support JD initiatives, as well as statewide and regional/local TOD/JD grant programs. Currently, the FTA has several grant programs that can be ap- plied to planning and/or executing transit projects associated with TOD/JD, including: • Title 49 U.S.C. § 5307 (Urbanized Area Formula Grants) • Title 49 U.S.C. § 5309 (Fixed Guideway Capital Investment Grants) • Title 49 U.S.C. § 5310 (Formula Grants for The Enhanced Mobility of Seniors and Individuals With Disabilities) • Title 49 U.S.C. § 5311 (Formula Grants for Rural Areas) 62 The first, SZEA was developed by a U.S. Department of Com- merce advisory committee on zoning in 1921. After several revisions, the Government Printing Office published the first printed edition in May 1924, and a revised edition in 1926. It provided a model for U.S. states to develop zoning regulations in their respective states. 63 In recognition of the importance of city planning, in March 1927, the U.S. Department of Commerce released a preliminary edition of the SCPEA. A final version was published in 1928. The SCPEA covered six subjects: 1. The organization and power of the planning commission, which was directed to prepare and adopt a “master plan” 2. The content of the master plan for the physical development of the territory 3. Provision for adoption of a master street plan by the governing body 4. Provision for approval of all public improvements by the plan- ning commission 5. Control of private subdivision of land provision for the establish- ment of a regional planning commission and a regional plan. 6. Provision for the establishment of a regional planning commis- sion and a regional plan See, Henry P. Chandler, Notes on the Standard City Planning Enabling Act, Chandler, Henry P. Notes on The Standard City Planning Enabling Act, American Bar Association Journal 13, no. 8 (1927): 435-39. 

12 TCRP LRD 56 opers and/or other stakeholders in the community to reach out to them about market activity around particular stations/transit nodes, rather than targeting specific areas for future TOD/JD projects Agencies’ processes for selecting a developer once bids for JD were submitted varied somewhat, but most had a board and/or a committee tasked with selecting the most appropriate bid. For TOD/JD projects that included a residential component, con- cerns about affordable housing were a common theme across nearly all of the agencies interviewed, so offering to provide a certain percentage of affordable housing (often mandated or recommended by the locality in which the JD would be devel- oped) made certain potential development partners more com- petitive or more likely to be selected.  B. JD Financing and FTA Involvement The way JDs were structured and financed also varied widely across the agencies/authorities interviewed. The most common method of JD partnership reported was negotiating a long-term ground lease (varying between 55 and 101 years) between the transit agency and the developer(s). In some cases, the agencies engaged with multiple private and/or not-for-profit develop- ment partners, and one agency reported creating a public devel- opment authority to manage the development process. One agency chose to have the property identified for development declared “surplus” to transit needs, then sold the property to the developer with FTA concurrence. As is required in declaring property surplus, the FTA was also repaid interest owed. Most commonly, however, most of the agencies interviewed chose to retain at least some rights to the property, which allows both the agency and the FTA some continuing control over the use of the property. Several agencies also sold some or all of the property involved in the JD, fee-simple, to the developer, which requires FTA concurrence.  Agencies are prohibited by law from investing public dollars in private real estate development endeavors; however, they were able to provide incentives to encourage private investment in JD. Several agencies were able to negotiate a lower cost for the ground lease than what was considered fair market value, with the concurrence of the FTA. This was done for the purposes of incentivizing the developer to provide additional public benefits as part of the development: for instance, one agency provided a discount to a developer who agreed to provide a higher per- centage of affordable housing than the baseline required by the locality. C. JD Challenges Many of the challenges detailed by the agencies interviewed relating to the JD process involved the perception by the devel- opment community of the FTA-assisted JD process as being especially complex and drawn-out, despite experience to the contrary. Several agencies found that the concept of “continu- ing control” by the FTA on leased property was a concern for private developers, who considered it a potential future risk, despite the lack of historical precedent indicating that continu- 7. Jacksonville Transportation Authority (JTA – Jacksonville, FL) 8. Tri-County Metropolitan Transportation District of Oregon (TriMet) 9. Metro Transit (Minneapolis–Saint Paul Area, MN) 10. Utah Transit Authority (UTA) 11. Central Puget Sound Regional Transit Authority (Sound Transit – Greater Seattle, WA) 12. Metropolitan Atlanta Rapid Transit Authority (MARTA) 13. Washington Metropolitan Area Transit Authority ( WMATA – Washington, DC) 14. Austin Capital Metro (Austin, TX) 15. Regional Transportation District (RTD – Denver, CO) The agencies were interviewed about the following topics: • Transit agency/authority participation in any JD projects. • The agency’s level of involvement with the FTA, if any. • Agency interaction/experience with the FTA regarding funding/implementing J projects. • Legal issues that may have come up during the JD process (examples include bankruptcy, termination, revocable rights, federal requirements), and how they were addressed/ remediated. • The agency’s willingness to share any JD agreements they have in place or have used in the past.  • The potential for future JD endeavors, and whether or not agency representatives feel that the FTA-assisted JD process was worthwhile from a cost/benefit standpoint.66 A. Procurement and Partnerships Most of the agencies interviewed expressed a preference for publicly seeking competitive offers from developers, rather than negotiating from unsolicited offers. Requests for proposals (RFP), requests for information (RFI), and requests for quali- fications (RFQs) were the most commonly used method of solicit ing proposals for JD. Several of the agencies interviewed noted that they had received unsolicited offers from developers, which then spurred them to examine opportunities for JD at a particular location, and thus resulted in a public request for qualifications and/or proposals. Agencies vary in how they plan (or do not plan) for TOD. Several of the larger agencies interviewed had mid-or long- range plans governing their TOD process, and/or plans for specific station areas. Several agencies initiated their own plan- ning processes, often in cooperation with MPOs/local jurisdic- tions. There were also several agencies who closely monitored development potential, based on market activity and key per- formance indicators around their station areas. A significant number of the agencies interviewed, however, did not have any specific TOD plans in place, and several mentioned during their interviews that, due to the unpredictability of the real estate market in their area, they felt that it was better to wait for devel- 66 See Appendix B for the full list of stakeholder interview questions.

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In the United States, transit oriented development (TOD) is now recognized as a critical element in the planning, development, and execution of transit projects. Recent legislation has been designed to streamline the approval processes for new transportation projects, focus more on safety, and establish new programs to advance critical freight projects.

The TRB Transit Cooperative Research Program's TCRP Legal Research Digest 56: Joint Development Agreements Using FTA Funds or FTA-Funded Assets aims to clarify the Federal Transit Administration (FTA) assisted joint development process and attempts to separate public perceptions (and misperceptions) about TOD from reality. It is an update to TCRP Legal Research Digest 12:The Zoning and Real Estate Implications of Transit-Oriented Development.

Appendix C incudes sample model agreement forms, developed from Washington Area Transit Authority’s Office of Real Estate and Station Planning Templates.

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