Uses of Fees or Alternatives to Fund Transit (2008)

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24 3. Portland, Oregon In Portland, Oregon, tax increment financing has been used for at least two transit improvement projects: • Approximately $7.5 million in tax increment funds were used to support that portion of the alignment of the Central City Streetcar that passes through the South Park Blocks tax increment district. • The Interstate Avenue Light Rail was supported by the City of Portland’s issuance of $30 million in gen- eral fund notes, which the Portland Development Commission must repay when the Interstate tax incre- ment district has the financial capacity to issue long- term bonds. 4. Georgia’s Tax Allocation Districts (TADs) As of March 2007, there were 27 existing TADs in Georgia, encompassing more than 18,700 acres, 20,600 tax parcels, and nearly $1.9 billion in existing base tax digest value. Ten of the existing TADs are in Atlanta and the majority of the remaining districts are scat- tered throughout suburban metro Atlanta locations.190 TADs are created in accordance with Georgia’s Rede- velopment Powers Law.191 A TAD is a geographic area within a redevelopment area from which a tax alloca- tion increment will be derived. “Redevelopment” may include “the development, construction, reconstruction, repair, demolition, alteration or expansion of struc- tures, equipment and facilities for mass transit.”192 Atlanta has taken advantage of TADs to finance public transportation infrastructure as a component of the development of redevelopment districts. One is the Atlantic Steel Brownfield Redevelopment Plan and TAD project, now known as Atlantic Station, which involves the redevelopment of over 138 acres of contaminated land previously used for industrial purposes. The Atlan- tic Station Project is designed to serve as a transit- oriented development. To access MARTA transit, the Atlantic Station project contemplates the construction of a new multimodal bridge over the downtown connec- tor that will provide a direct interface with MARTA’s Arts Center Station and Midtown’s urban transporta- tion grid. The Eastside Atlanta Redevelopment Plan and TAD Number 5—Eastside assumes that the im- provements listed in MARTA’s Transit-Related Devel- opment Program will be incorporated into the Eastside TAD’s redevelopment efforts. It is anticipated that $10 million to $20 million in TAD funds will be used for transportation improvements, including public trans- 190 Bleakly Advisory Group, A Livable Communities Coali- tion Report: Survey and Analysis of Tax Allocation Districts (TADs) in Georgia—A Look at the First Eight Years, Oct. 4, 2007, summary available at http://www.livablecommunitiescoalition.org/uploads/100012_bo dycontentfiles/100585.pdf (last visited Apr. 1, 2008). 191 GA. CODE ANN. § 36-44-1 et seq. 192 GA. CODE ANN. § 36-44-3(5)(G). portation improvements.193 The city’s Westside TAD also establishes transportation objectives that seek to maximize the area’s access to MARTA and future com- muter rail. C. Transportation Assessment Districts—Boston’s Northpoint Development Project In response to the national survey that went out to approximately 300 transit agencies, the Massachusetts Bay Transportation Authority reported the recent en- actment of legislation that allows for tax revenues paid by developers to be utilized to finance infrastructure investments, including transit-related infrastructure in connection with the Northpoint development project.194 The Northpoint project consists of a plan to create a mixed-use, transit-oriented neighborhood in an under- utilized industrial area straddling the cities of Cam- bridge, Boston, and Somerville. The Northpoint plan includes the replacement of the Lechmere T station operating on the Green Line, currently under construc- tion at an anticipated cost of $70 million and scheduled to open in 2010. In accordance with the legislation, the Massachu- setts Development Finance Agency was authorized to borrow money and issue and secure its bonds for the purpose of financing public infrastructure within or adjacent to the Northpoint development district.195 Such bonds are to be paid from the revenues of infrastructure assessments imposed by the agency upon development parcels within the district. The legislation requires the development of an assessment plan that is required to, among other things, describe the public infrastructure projects to be constructed as part of the Northpoint pro- ject, describe the boundaries of each assessment parcel within the development district, and describe the meth- odology for calculation of infrastructure improvements to be levied by the agency to recover the costs of the public infrastructure. The legislation authorizes the agency to fix, and in each fiscal year thereafter, charge and collect, a special assessment upon each assessment parcel in an amount equal to that assessment parcel’s allocable share of the costs of public infrastructure improvements. The legis- lation expressly includes rail and other transportation facilities as infrastructure improvements. VI. TRANSIT IMPACT FEE CASE STUDIES The use of impact fees for transit improvements, while rare, is best described in the following case stud- 193 East Atlanta Stakeholders and Huntley & Associates, Eastside Atlanta Redevelopment Plan & Tax Allocation District #5—Eastside, Nov. 2003, http://www.atlantada.com/ada_website_qa/buildDev/documents /EastsideRedevelopmentPlan.pdf. (Last visited Apr. 1, 2008). 194 2006 Mass. Acts ch. 123, § 114. 195 The “Northpoint development district” is defined to in- clude the several contiguous parcels of real property owned or leased by the developer in the cities of Somerville and Boston.

25 ies. An examination of these case studies demonstrates the planning detail necessary to support substantive legal validity requirements. Also demonstrated is the variety of ways in which impact fees can be structured, the innovative ways used to structure the programs, and the close cooperation required of all parties in- volved. A. Seattle, Washington: Multimodal Approaches to Impact Mitigation196 In the State of Washington, impact fees are author- ized under the Growth Management Act (GMA),197 as part of “voluntary agreements,”198 under the “Local Transportation Act,”199 and as mitigation for impacts under the State Environmental Policy Act (SEPA).200 GMA impact fees are only authorized for public streets and roads, publicly-owned parks, open space and rec- reation facilities, school facilities, and fire facilities in jurisdictions that are not part of a fire district. Trans- portation impact fees for streets and roads are probably the most commonly imposed of all types of impact fees in Washington.201 The City of Seattle recognized that, because of the GMA’s implicit prohibition on the collection of fees for transportation modes other than roads, such as pedes- trian, bicycle, and transit improvements, the GMA did not meet the city’s emerging transportation funding needs. Seattle opted to pursue a nontraditional ap- proach to mitigate the transportation impacts of new development by using a “voluntary agreement” in ac- cordance with SEPA to fund multimodal transportation improvements through environmental mitigation pay- ments. Developers arguably benefit from participation in the city’s mitigation program, which in many cases is faster than the permit review process, as comprehen- sive mitigation is essentially built into the developer’s proposal. The developer is relieved of traditional impact studies if it agrees to pay the fees. The Washington Appellate Court has considered the use of impact fees exacted under SEPA for traffic miti- gation purposes. In Castle Homes and Development, 196 Tom Noguchi, Multi-Modal Approaches to Development Impact Mitigation: Managing Congestion Can We Do Better, Institute of Transportation Engineers 2007 Technical Confer- ence and Exhibit (2007). 197 WASH. REV. CODE § 82.02.050–.100. See Hugh D. Spitzer, Taxes vs. Fees, 38 GONZ. L. REV. 335, 24–31 (2003); See also Joseph D. Lee, Sudden Impact: The Effect of Dolan v. City of Tigard, 71 WASH. L. REV. 205 (1996), for a discussion of the historical development of impact fees in the State of Washing- ton. 198 WASH. REV. CODE § 82.02.020. 199 WASH. REV. CODE § 39.92.040. 200 WASH. REV. CODE ch. 43.21C. 201 http://www.mrsc.org/Subjects/Planning/transimpactfees.aspx (Last visited Apr. 1, 2008). Inc. v. The City of Brier,202 the court found that state law did not prohibit impact fees where paid pursuant to “voluntary agreements,” specifically to mitigate a direct impact that has been identified as a consequence of a proposed development. However, in developing such fees a city must identify the development-specific im- pacts to be mitigated203 and “show the required im- provements were reasonable necessary ‘to mitigate the direct impact of the development.’”204 The City of Seattle set up an impact mitigation pro- gram using authority under SEPA. This is done through negotiated agreements with developers in lieu of requiring the mitigation required by permit condi- tions imposed by SEPA as part of the environmental review conducted in the permitting process. Payments are based on the cost of transportation improvements identified in an area-wide transportation study pre- pared by the City of Seattle. Payments are calculated by general land-use categories and amount of floor area or number of dwelling units in a proposed development. The payments must be applied to a comprehensive set of transportation improvements identified in the trans- portation study, based on a developer’s impact.205 Funds received through transportation mitigation payments are earmarked specifically for projects on a predeter- mined list of projects. The funds are retained in a spe- cial reserve account and funds not used within 5 years will be refunded with interest, unless the delay can be attributable to the developer. B. San Francisco Transit Impact Development Fee (1981) On May 5, 1981, the San Francisco Board of Super- visors passed the country’s first TIDF ordinance.206 The 1981 TIDF was enacted pursuant to the city’s police power regulations207 and preceded California’s Mitiga- tion Fee Act.208 The fee was designed to provide revenue for the Muni, to offset the anticipated increased capital expansion and operating costs of Muni required to ac- 202 72 Wash. App. 95, 882 P.2d 1172 (Wash. App. Div. 1, 1994). 203 Id. at 1178. 204 Id.; citing to Southwick, Inc. v. Lacey, 58 Wash. App. 886, 795 P.2d 712 (1990). 205 Transportation Mitigation Payments: South Lake Union, Oct. 10, 2005, Seattle Permits, Client Assistance Memo 243, City of Seattle, Department of Planning and Development, available at http://www.seattle.gov/dpd/publications/cam/CAM243.pdf (Last Visited Apr. 1, 2008). 206 (Ord. No. 224-81), codified at City of San Francisco Admin. Code § 38.1 et seq. (referred to herein as the “1981 TIDF”). 207 See Russ Bldg. P’ship v. City and County of San Fran- cisco, 199 Cal. App. 3d 1496, 1505, 246 Cal. Rptr. 21, 25 (1987). (“Typically, a development fee is an exaction imposed as a pre- condition for the privilege of developing the land…. This is one of the most common subjects of local police power regulations.”) 208 CAL. GOV’T CODE §§ 60000 et seq.

26 commodate new transit ridership during peak commut- ing hours generated by the construction of new office space in the downtown area. Significant development in downtown San Francisco in the late 1970s led to concerns that Muni would be unable to sustain then-current levels of service without substantial investment. The Board of Supervisors found that “The demand for public transit service from down- town area office uses imposes a unique burden on the Muni qualitatively different than the burden imposed by other uses of property in San Francisco. The need for that level of service provided by the Muni during peak periods can be attributed in substantial part to office uses of property in the downtown area.”209 The city had historically provided transit out of general revenues, and residents and local politicians worried that the burden of increased costs would be borne through in- creased taxes. After a review of alternative funding methods, the city decided on impact fees to pay for de- velopment’s effect on transit.210 The 1981 TIDF was intended to capture all costs incurred by the [Muni] in meeting peak period public service transit service demands created by office uses in each new development subject to the fee, includ- ing the expansion of service capacity through the pur- chase of new rolling stock, the installation of new lines, the addition of existing lines and the long term operation, maintenance, repair and replacement of those expanded facilities.211 As discussed earlier, the 1981 TIDF withstood a le- gal challenge and was successfully used to generate revenues for transit service;212 however, the city recog- nized that the 1981 TIDF had certain inherent struc- tural limitations. • 1981 TIDF Limited to Office Uses: While it was ini- tially determined that office use was the primary trip generator and thus posed the largest service burden on Muni, subsequent study revealed that other land uses, such as major retail and entertainment developments, hotels, institutions, and cultural developments, and some business service and industrial uses, generated as many, or more, peak period trips on Muni as office space. Total daily trips were estimated to make such a comparison even more dramatic, as office uses have a rush-hour demand pattern different than other uses, such as retail, hotel, and entertainment uses. • Conversion to Office Uses: Conversions of existing buildings, previously used as warehouses or for light industrial should come under TIDF when converted, but are often difficult to track. 209 City of San Francisco Admin. Code § 38.2 (May 1981). 210 Transit Impact Development Fee: San Francisco Munici- pal Railway, San Francisco California, in FUNDING STRATEGIES FOR PUBLIC TRANSPORTATION (Part B), at 64 (TCRP Report 31, Vol. 2, 1998). 211 City of San Francisco Admin. Code § 38.2 (May 1981). 212 Russ Bldg. P’ship v. City and County of San Francisco, 199 Cal. App. 3d 1496, 246 Cal. Rptr. 21 (1987). • Potential for Refunds: The 1981 TIDF was set up to collect, prior to occupancy, the incremental cost of providing transit service for a presumed 45-year build- ing life. Developers may request a refund if the building is converted to another use. While the city had not ex- perienced such a refund request, the possibility existed, leaving the city open to a potentially unfunded contin- gent liability. • New Areas of Development: Office uses extended beyond downtown, creating new and more expensive demand for transit services to new employment concen- trations. With the fee collection area limited to down- town, it was not possible for the city to recoup the costs of providing additional services to these new areas. • Limitations on Spending: The 1981 TIDF re- stricted operating funds to uses that increase peak pe- riod service over 1981 levels. As overall funding dimin- ished, Muni found it increasingly difficult to maintain service. Further, service expansion needs are not lim- ited to the peak period; incremental service costs are the same, regardless of the hour, with the only variable being the capital cost of a new vehicle. The 1981 TIDF Ordinance did not permit Muni to expand its service in nonpeak hours to meet increasing demand in those hours. 213 C. San Francisco Transit Impact Development Fee (2004) In 2000, the City of San Francisco’s Planning De- partment assessed the need to revise the 1981 TIDF. The various issues for consideration included whether the TIDF should be expanded to include types of land uses in addition to offices; whether the TIDF should be expanded geographically beyond the original TIDF As- sessment Districts; whether the fee amounts should vary by geographic or land-use categories; what stan- dards should be used for measuring baseline perform- ance of the Muni; and the amount of developer fees that would be necessary to fund public transit to meet the additional demand resulting from new development.214 The city’s assessment resulted in an expansion of the TIDF to all nonresidential uses throughout the city. It also established the required nexus between new devel- opment and transit expansion, recognizing that it is not legally possible to create a nexus that would assess de- velopment for the costs of addressing system deficien- cies.215 The city chose to adopt a performance measure based on revenue hours per trip standard. It identifies a reasonable relationship between the type of develop- ment and the need for new facilities based on trip gen- 213 Nelson/Nygaard, supra note 10, at 1-7–1-9 (2001). 214 San Francisco Bd. of Supervisors, Ord. No. 199-04, § 38.2, Findings, July 12, 2004. 215 See Russ Bldg. P’ship v. City and County of San Fran- cisco, 188 Cal. App. 3d 977, 234 Cal. Rptr. 1 1987 (Russ 1), where the court emphasized that the use of the impact fee must be related to the incremental financial burden imposed upon the transit agency by new development.

27 eration rates by land-use category. Further, fee reve- nues can be used to increase revenue hours up to the extent needed to maintain the existing service stan- dard. Funded services may be for any location within the Muni system and for any period of the day.216 TIDF’s 2004 funds could be used to increase revenue service hours reasonably necessary to mitigate the impacts of new nonresidential development on public transit and maintain the applicable base service standard, includ- ing, but not limited to funding 1) capital and operating and maintenance costs associated with new transit routes, expanded transit routes, or increases in service on existing routes; 2) capital or operating costs required to add revenue hours to existing routes; and 3) related overhead costs.217 Ineligible uses would include re- placement vehicles, operating and maintenance costs of existing transit vehicles, costs to improve service qual- ity that does not also increase revenue hours, and costs to increase service quantity above the existing standard of revenue-hours per trip.218 The 2004 TIDF is also subject to a continuing 5-year review to determine whether the TIDF for each eco- nomic activity category should be increased, decreased, or remain the same. Any such determination would be based on updated information regarding, among other things, the base service standard, capital and operating costs, levels of federal and state grant funding, fare revenue, revenue service hours, trip generation rates, and costs per service-hour, per trip, and per gross square foot of development by economic activity cate- gory. The board of supervisors may make revisions to the fee schedule upon a finding that the new fees would be reasonably related to and would not exceed the costs incurred by Muni to maintain the applicable base ser- vice standard, in light of demands caused by new devel- opment. TIDF revenues have increased substantially since the adoption of the 2004 TIDF Ordinance. For fiscal years ending June 30, 1996, 1997, 1998, 1999, and 2000, Muni reported TIDF collections of $1,291,935, $3,299,379, $2,268,636, $749,725, $5,515,492, respec- tively. Muni’s Final Revenue and Expenditure Report for the fiscal year ended June 30, 2005, reflects a TIDF appropriation of $10,160,399.219 216 Nelson/Nygaard, supra note 10, at 5-10–5-11. 217 City of San Francisco Admin. Code § 38.8 (July 2004). 218 See Russ Bldg. P’ship v. City and County of San Fran- cisco, 188 Cal. App. 3d 977, 234 Cal. Rptr. 1 1987 (Russ 1). 219 San Francisco Municipal Railway, Final Review and Ex- penditure Reports 2001 and 2005. D. Broward County, Florida—Transit Concurrency Fees 220 The county’s Transit Oriented Concurrency (TOC) Management System was initiated in 2003 when the Broward County Commissioners eliminated the Trans- portation Impact Fee system that was developed to make development pay a share of road expansion. At that time, the county recognized that there needed to be a more effective development mitigation measure geared toward the improvement of transit facilities. In fact, the county’s current population of 1.6 million is estimated to grow to 2.6 million by 2030. Most roads in Broward County currently fail or will fail the Florida DOT’s Level of Service Standards by 2030. In addition, in Broward County there is not enough right-of-way and funding to expand the local, state, and federal road/highway network to address road network over- flow. After further analysis and amendment of the Broward County Comprehensive Plan and Land Use Development Code, the TOC Management System was adopted April 26, 2005.221 The TOC Management System divides Broward County into 10 Concurrency Districts. Two of these are “Standard Concurrency Districts,” where roadway im- provements are anticipated to be the dominant form of transportation enhancement, while the remainder are “Transit Oriented Concurrency Districts,” defined as “a compact geographic area with an existing network of roads where multiple, viable alternative travel paths or models are available for common trips.”222 The Land Development Code establishes levels of service stan- dards for each of the TOC Districts. For example, for the North Central District: achieve headways of 30 minutes or less on 90 percent of routes, establish at least one neighborhood transit center, establish at least one additional community bus route, and expand cover- age area to 53 percent; and for the Eastern Core Dis- trict: achieve headways of 30 minutes or less on 90 per- cent of routes, achieve headways of 20 minutes or less on 40 percent of routes, establish at least one neighbor- hood transit center, and establish at least two addi- tional community bus routes.223 Prior to application for a building permit with any local government within Broward County, a developer is required to obtain a Transportation Concurrency Sat- isfaction Certificate from the Broward County Devel- opment Management Division. The county will issue such a certificate if the developer has paid to Broward County a Transit Concurrency Assessment for the de- 220 Much of the information relied upon for this case study was produced by Jonathan Roberson, Senior Planner, Broward County Transit, in a presentation entitled, “Broward County’s Transit Oriented Concurrency Management System,” Sept. 20, 2006, slide presentation available at http://www.ftpn.cutr.usf.edu/Wordfiles_PDF/PDW 2006 CUTR TOC Presentation.pdf (Last visited Apr. 1, 2008). 221 Broward County Ordinance No. 2005-08. 222 Broward County Land Development Code § 5-201. 223 Id.

28 velopment proposed in the building permit application. The concurrency assessment is based on a 5-year, fi- nancially feasible, County Transit Program (CTP) that was recommended by the Broward metropolitan plan- ning organization and approved by the Broward County Commission. The CTP was required to include transit projects in each of the 10 districts. Projects funded and scheduled for development between 2006 and 2010 in- clude two new fixed routes, two new limited-stop routes, headway improvements on five routes, 10 new commu- nity buses, three new neighborhood transit centers, and funding for additional pedestrian improvements.224 Total CTP capital costs are estimated at $11,140,000, while total CTP operating and mainte- nance costs are estimated at $27,450,100. Of the total operating and capital costs, $10,800,000, or 28 percent, is estimated to be funded by concurrency assessments. Ongoing operating and maintenance costs of new tran- sit service and infrastructure after 2010 are expected to cost the county an additional $7 million to $10 million annually. The Land Development Code requires the concur- rency assessment to be calculated as “the total peak- hour trip generation of the proposed development mul- tiplied by a constant (for each year) dollar figure for each District, that represents the cost per trip of all the enhancements in that District described in the [CTP.]”225 The Broward County ordinance exempts de- velopments that promote public transportation, mean- ing development that directly affects the provision of public transit, including transit terminals, transit lines and routes, separate lanes for the exclusive use of pub- lic transit services, transit stops, and office buildings that include fixed rail or transit terminals as part of the building. Developments that encourage transit usage receive credits toward the transit concurrency assess- ment.226 The Broward County concurrency assessment is a one-time charge to developers prior to the building permit stage of development and as such addresses only the cost of transit capital improvements and operating and maintenance costs over a 5-year period. After 2010, Broward County must assume $7 million to $10 million for the TOC-created service and related amenities. This anticipated funding gap has focused concern on the structure of the TOC Management System. Further, the program may be too short (2006–2010) to be considered as a local match for Federal Transit Administration New Starts and State New Starts funding.227 224 See Roberson presentation entitled, “Broward County’s Transit Oriented Concurrency Management System,” Sept. 20, 2006, slide presentation available at http://www.ftpn.cutr.usf.edu/Wordfiles_PDF/PDW 2006 CUTR TOC Presentation.pdf (Last visited Apr. 1, 2008). 225 Broward County Land Development Code § 5-182. 226 Id. 227 See Roberson presentation entitled “Broward County’s Transit Oriented Concurrency Management System,” Sept. 20, 2006, slide presentation available at http://www.ftpn.cutr.usf.edu/Wordfiles_PDF/PDW 2006 CUTR It has not been decided whether the TOC program will continue after 2010. An analysis of the success of TOC investments will follow after complete implemen- tation in 2010. Other Broward County transit modes, such as light rail and rapid bus, will be eligible for TOC funding if the program is extended after 2010. E. Portland, Oregon—System Development Charge Portland’s “system development charge” (SDC), has been in place since 1997 and has been used to fund a specified list of multimodal transportation projects, in- cluding right-of-way improvements required to accom- modate a light rail system through a portion of down- town Portland; reconstruction of utilities in the right-of way, plus street improvements serving the new central city street car project; upgrading the bus dispatch sys- tem; new signals, shelters, lighting, and sidewalks to accommodate new TriMet bus service; widening road- ways to accommodate bicycles; bridge construction and roadway improvements; and construction of a pedes- trian bridge. The city found that, due to a lack of agency funding, “New development within the City of Portland contrib- utes to the need for capacity increases for roads, multi- modal transportation and related transportation im- provements, to enable new development to take advan- tage of transit systems and, that new development should contribute to the funding for such capacity in- creasing improvements.”228 While the principal transit provider for the City of Portland is TriMet, the city could adopt an SDC supportive of transit needs such as improvements to rights-of-way, bus pull-outs, and bus shelters, all of which are supportive of costs that are traditionally incurred by municipalities. The city could not incur costs for rolling stock, rails, or transit opera- tions, but it could fund supportive infrastructure. As discussed above under “Use of Impact Fees for Tran- sit—Developer Response to Impact Fee Programs,” Sec- tion II.E herein, the city’s initial commitment to com- munity outreach proved critical to stakeholder support and acceptance of the SDC adopted in 1997. The City Code and Charter clearly articulates the le- gal rationale and statutory basis for the SDC. The City Code and Charter specifically recites that the SDC is separate from other fees provided by law or imposed as a condition of development. “It is a fee for service be- cause it contemplates a development’s receipt of trans- portation services based upon the nature of that devel- opment.”229 TOC Presentation.pdf (Last visited Apr. 1, 2008). Roberson also identifies a disconnect between the mandatory placement of transit and transit amenities in the 10 TOC Districts com- pared to what Broward County Transit needs overall. Some of the approved TOC transit services may not be among Broward County Transit capital and operating priorities, resulting in an inefficient use of resources. 228 City of Portland Code and Charter § 17.15.010(A). 229 Id. § 17.15.010(C).