BART Board votes to endorse Wiener housing bill

Transit agency members support upzoning -- despite growing community opposition

On March 8, the BART Board voted 5-4 to support SB 827 – state Sen. Scott Wiener’s housing bill — with undetermined amendments that address tenant protections, affordability, incentives for developers, and prevailing wages. The BART directors who voted for the endorsement included Nick Josefowitz, who’s running for District Two supervisor. During the board’s deliberations, Josefowitz downplayed the bill’s impact, stating that it “would trigger some changes in local zoning.”

To be precise, SB 827 would slash cities’ authority over land use: The bill exempts housing projects within a half-mile of a major transit stop or a quarter-mile radius of a transit stop on a “high-quality” transit corridor (defined as “fixed route” bus service no less than every 15 minutes during peak commute hours) from local controls on

  • density
  • minimum parking spaces
  • maximum heights
  • and zoning that limits additions onto existing structures that comply with the bill’s own maximum height limitations of 55 of 85 feet, depending on the width of the street.

As Wiener, has it: “Developers can choose to build shorter, but cities can’t force them to build shorter…” According to the San Francisco Planning Department, SB 827 would upzone almost 96% of the city. When the state’s density bonus kicks in, under certain conditions, buildings could go as high as 105 feet.

Until March 8, other than the bill’s co-authors, who include State Senator Nancy Skinner, the supporters of SB 827 were all private members of the state’s growth machine:

  • real estate interests that will cash in on the speculative frenzy that would be triggered by the bill’s loosened restrictions on development
  • tech companies whose highly-paid employees have bid up the Bay Area’s residential real estate values to their current obscene levels
  • academics at the University of California, USC, and San Jose State University who lend their credentialed expertise to the growth machine
  • pro-growth non-profits, including think tanks and philanthropies with housing, environmental, and/or equity agendas.
  • the machine’s new “shock troops” (Wiener’s term): the highly educated young professionals who call themselves Yimbys for Yes in My Backyard but really mean Yes in Your Backyard. SB 827 was drafted by CA Yimby Executive Director Brian Hanlon.

The BART Board gave the bill its first endorsement from a public agency.

Board followed staff’s lead

The agenda for the BART Board’s March 8 meeting included a memorandum, “State and Federal Legislative Update” (Item 6A), written by Rodd Lee, the manager of BART’s Government and Community Relations Department, that recommended support for SB 827. The associated one-page “analysis and recommendation” is stunning in its superficiality.

Summarizing the bill’s provisions, Lee noted that SB 827 expands on two laws enacted in 2017, Chiu’s AB 73 and Wiener’s SB 35, that addressed California’s “severe housing shortage” by “establishing state minimum zoning near high quality transit.” He offered no assessment of this legislation.

Lee also noted “[r]ecent amendments” to SB 827 that “seek to address early concerns regarding displacement and affordability.”

  • the adoption of local mandatory inclusionary housing requirements and voluntary programs that grant zoning bonuses and waivers for affordable housing
  • local control over demolition bans and [demolition] permitting
  • and a Right to Remain Guarantee for all displaced tenants provided by the developer

According to Lee the amendments “provide some assurance against the loss of low-income housing.” How much, he didn’t say.

Most revealing is his sanguine analysis of the bill’s impact on BART. “By incentivizing the building of housing near transit,” Lee wrote,

SB 827 provides many potential benefits to BART. BART stations by nature are “major transit stops” and could see an increase in housing built within a half-mile radius. Denser housing near BART could increase ridership as data show that residents within a half-mile of BART are twice as likely to walk, bike or take transit for their commute trip, and own fewer cars.

That data comes from the U.S. Census American Community Survey, 2010-2014 and consultant Nelson/Nygaard. It’s displayed in bar charts on the BART website:

“In addition,” Lee wrote,

housing next to BART and high-quality transit offers a sustainable way to ensure ongoing ridership, which helps reduce freeway congestion and greenhouse gas emissions related to vehicle trips. SB 827 compliments [sic] many aspects of BART’s TOD Policy and performance targets.

BART certainly needs more riders and more revenue. Even with the region’s  megagrowth and voters’ 2016 approval of a $3.6 billion BART bond, the agency is losing patronage and money, as Item 2E on the March 8 agenda, the “FY18 Second Quarter Financial Report,” makes clear:

Total Ridership was 3.2% under budget for the second quarter of FY18, compared to 2.4% under budget in the first quarter, and 3.4% lower than ridership in the same period of FY17. Despite reduced budget expectations for FY18, monthly ridership in FY18 is still trending below the lower budget. Second quarter FY18 weekday trips were 2.7% below budget and weekend/holiday trip were 5.3% below budget. Passenger revenue in the second quarter was $3.6M (2.9%) unfavorable, more than the first quarter negative budget variance of $1.0M.

The financial report ends with a dreary prediction:

“[t]he ridership decline is expected to continue into the second half of FY18, with a negative impact on operating sources. BART’s focus on filling only critical operating positions has helped manage labor expenses, however, the second half of the year is expected to be more financially challenging due to pressure to increase staff to address service and quality of life issues. The ridership and expense trend may result in an operating deficit of FY18 YearEnd.

Transit-Oriented Displacement

A crucial question, then is whether SB 827 would likely increase BART’s ridership and revenue. A satisfactory answer requires more than data about how car ownership and commuting modes positively correlate with residential proximity to BART. We also need to know whether transportation-oriented development (TOD) reliably increases transit use and reduces driving. BART’s staff and its board assume that it does. That assumption is not borne out by scholarly research.

The 2010 study from Northeastern University’s Dukakis Center for Urban and Regional Policy, “Maintaining Diversity in America’s Transit,” analyzed socioeconomic changes in 42 neighborhoods in 12  metropolitan areas first served by rail transit between 1990 and 2000. The “predominant pattern,” the researchers found, was that TOD inflated real estate values, driving out low-income people, who use transit the most, while drawing new, wealthier residents into the transit-accessible neighborhood who were more likely to own a car and to use it to commute.

With that pattern in mind, it’s hard to take seriously the claim, put forth in the Yimbys’ letter to BART urging support for SB 827, that “reliable high quality transit” such as BART, is “an effective anti-poverty program.”

But what about the recent amendments to SB 827 addressing displacement and affordability?

Unfortunately, the amendments are sops.

  • Most California cities lack inclusionary ordinances, that is, requirements that housing developers include a certain amount of affordable housing in their projects.
  • “[V]oluntary programs that grant zoning bonuses and waivers for affordable housing” cannot be enforced.
  • Respecting local control over demolition means little because many California cities, including the biggest one, Los Angeles, have no such controls.
  • The “Right to Remain Guarantee” for all displaced tenants is more accurately labeled the “Right to Come Back After You’ve Been Forced Out of Your Home For Up to Three and a Half Years.” The bill provides no funding to enforce or monitor the temporary relocation process. In any case, moving is a burden, especially for people of modest means. Most tenants won’t return.
  • The amended bill does not mandate the creation of a single unit of affordable housing.

Above all, by raising heights and densities, SB 827 will set off a flipping boom and strengthen the major force behind displacement: real estate speculation. In the words of former LA Councilmember and LA County Supervisor Zev Yaroslavsky, SB 827 “isn’t a housing bill; it’s a real estate bill.” That’s why 37 affordable housing, tenant rights, and transit equity groups signed ACT-LA’s letter opposing the bill. Wiener’s amendments haven’t changed their opposition.

During public comment at the BART Board’s March 8 meeting, Public Advocates Senior Staff Attorney David Zisser said that the tenants’ rights community is “extremely concerned” about the SB 827’s silence on affordable housing and land value capture (returning to the public some of the jump in property values resulting from public investment in transit). Zisser asked the Board to oppose or at least not support the bill.

SB 827 has other big problems that the staff report ignored: It says nothing about funding the myriad new services—police, firefighters, sewers, water, parks, schools, and, yes, transit—for the new housing it would presumably foster. It bypasses the state’s premier environmental law, the California Environmental Quality Act. And it eliminates due public process—notifications, workshops, rights of appeal—for all properties in its coverage areas.

What pro-SB 827 BART directors said

San Francisco has three BART districts. Annoyingly, the numbers of the districts are not on the map proper that’s posted on the agency’s website. From west to east: Josefowitz represents District 8 (orange). Number 9 (deep pink) is represented by Bevan Dufty. Lateefah Simon represents District 7 (yellow), which also covers parts of Alameda and Contra Costa Counties. Josefowitz, Dufty, and Simon all voted to support SB 827. Josefowitz’s campaign for District 2 Supervisor has been endorsed by Wiener and Simon.

Speaking in favor of SB 827, Josefowitz averred that the bill would not give BART new powers. He made that claim after commenting on another bill under consideration at the board’s March 8 meeting, AB 2923. Introduced by Assemblymembers David Chiu (D-San Francisco) and Tim Grayson (D-Concord), AB 2923 would authorize BART to impose new TOD zoning guidelines over contiguous BART-owned land larger than a quarter acre and within a half-mile of BART stations in San Francisco, Alameda and Contra Costa Counties. (San Mateo County escapes, because its voters have no elected BART representative.) Within two years of such imposition, local jurisdictions would be required to adopt an ordinance that approves the application of the TOD guidelines.

Josefowitz told Bay Area News Group Bay Area News Group reporter Katy Murphy that he supports AB 2923. At the Board meeting, he denied that the bill is “an attempt by BART to grab more power.” Later in the meeting, General Manager Crunican stated that “none [i.e. neither] of these bills were BART-initiated.

But whatever its origins, AB 2923 would greatly aggrandize the agency’s land use authority—and so would SB 827. According to BART’s 2017 “Transit-Oriented Development Guidelines,” the agency owns about 250 acres of “developable land” spread across 27 current and under construction stations. In 2017, the state Legislature approved SB 680, which extended the distance in which BART may engage in TOD projects from one-quarter mile to one-half-mile from a transit facility. The agency already had the authority to acquire property, including by eminent domain, in order to operate its transit system within its jurisdiction. Introduced by Fremont Senator Wieckowski, SB 680 was sponsored by the Bay Area Council. Its supporters included BART, the Building Industry Association of the Bay Area, SPUR, Yimby Action, and the Yimby legal arm, the California Renters Legal Advocacy and Education Fund (CaRLA).

Under SB 827, BART, like any other owner of property within a half-mile of a major transit center or a quarter-mile radius of transit stop on a high-quality transit corridor, would have the legal right to build housing at least 55 to 85 feet high (and higher with the State Density Bonus), with no parking minimums or residential density maximums.

Stating that SB 827 was a work “in progress,” and that “various concerns will be addressed,” Josefowitz said that “it would be a shame” to oppose the bill, and that if his colleagues “want to see how it evolves,” he wasn’t “in a massive rush” to vote on it. Once it had become obvious that a bare majority of the board was willing to support the embryonic measure, he voted to endorse.

I couldn’t understand most of what Bevan Dufty said or, at times, even if he was the one who was speaking, because Board President Robert Raburn didn’t name the directors on whom he called. For anyone watching the meeting online, as I did, it was often impossible to tell who had the floor. Moreover, Dufty repeatedly failed to speak into his mic, making his statements incomprehensible. We didn’t have a timely chance to discuss those statements before this story went to press.

By contrast, Lateefah Simon was both audible and comprehensible. Citing California’s “tremendous housing shortage and the “audaciousness” of SB 827, Simon expressed support for the bill, pending strong amendments for tenant protections. “I’m not willing to say No about either [SB 827 or AB 2923],” she said, adding that she was “open to further conversations before we vote.” Apparently, subsequent discussion swayed her to say Yes to SB 827. Simon also joined the six other directors who voted to follow the staff recommendation and remain neutral on AB 2923. Like Josefowitz, she didn’t reply to request for an interview.

The other two Directors who voted to endorse SB 827 were Raburn, representing District 4 (magenta), and Saltzman, representing District 3 (green). Raburn lavished praise on the bill. After reciting pro-SB 827 boilerplate—“we’re in a [housing] crisis”—he declared:

We need an Apollo-like program to house the two million people that, ABAG projects, will be living next to us in the Bay Area over the next twenty years….Will they be living in Tracy or Manteca, or will they be living over a BART station?….I look at 827 and personally wonder, what’s not to like? Maybe something about labor.

But labor “isn’t an issue for BART,” Raburn opined, alluding to “labor project-specific agreements” that “have been in place since 2011.

Given BART’s recent labor history, this was a confounding statement. In reply to my emailed query, Raburn explained that he was referring to the BART policy that requires a Project Stabilization Agreement with local hire provisions on the agency’s TOD projects. The agreements are negotiated by BART staff between the developer and the building trades council of the county in which the project is located. 

Raburn did express concerns about TOD-fostered displacement of small businesses and non-profits as well as tenants. Overall, however, he deemed SB 827 to be “incredibly elegant,” because it “doesn’t burden any one jurisdiction with development.”

At the meeting, Saltzman provided a clarifying voice, as the meeting threatened to dissolve into chaos, due to Raburn’s failure to direct deliberation. Her ultimate vote to support SB 827 was predictable, given that on January 4, the day after Wiener had introduced the bill, she tweeted thanks to him for “a bold proposal that would increase and accelerate housing production on BART property and around stations. BART is committed to dense TOD but does not control zoning: this bill would help us meet our ambitious goals.”

Saltzman and I spoke after the March 8 meeting. When I noted that the board hadn’t detailed the amendments it wanted to see in SB 827, she said that writing those amendment wasn’t the board’s responsibility. But when the board voted 7-2 to remain neutral on AB 2923, it directed it staff to work with state legislators on changes to the measure. In any case, the prudent move would have been to wait and see what, if any, additional changes Wiener and Skinner make in their bill, before supporting it.

Saltzman also demurred when I asked about SB 827’s failure to address the provision of new services and infrastructure—including transit—for the explosion of new housing that the bills’ authors hope it will prompt. In January, I’d asked Wiener the same question at the UCLA Extension’s Land Use and Law Conference. He ducked the issue, and so did she, in words that echoed his. “People are coming to California,” she said. “The population is growing. They’re here, and we need to accommodate them.” So all they’re going to need is a place to live?

Saltzman seemed unaware of TOD-instigated gentrification, displacement, and reduced transit use. I sent her links to a few studies.

Anti-SB 827 directors

The four BART Directors who voted not to support SB 827 were Debora Allen (District 1, blue), Joel Keller (District 2, brown), John McPartland (District 5, pale pink),  and Thomas Blalock (District 6, charcoal). Allen and McPartland voted also against remaining neutral on AB 2923, which they adamantly oppose.

Allen began by acknowledging that the combination of high density and transit is good for housing. That was the last positive thing she said. BART, she observed, is already “at capacity,” and is going to remain that way for a while. More importantly, “this agency should not be the anointed redevelopment agency for the Bay Area…..We are a transit agency” that “has struggled and still struggles to accomplish that mission.” BART needs to continue addressing “crime, cleanliness, modernization of our stations, and infrastructure improvements.” Building housing, she said, would be “a diversion from all of those priorities.” Moreover, due to shortages in the building trades, “we don’t have the labor available.” Staff recently told the board that it would take “seven years to replace all of our escalators.”

McPartland gave Wiener a nod, saying that he “appreciate[s] the senator’s “perspective.” He does not, however, appreciate SB 827, which he called “cookie-cutter legislation for TOD that works in San Francisco, not in Piedmont.” As for AB 2923: “I can’t overstate how viscerally offended I am by this legislation. We want to be partners with our municipalities” and “should be sharing concerns about the amount of density we can put on this property.” Then, a quote you rarely hear from an elected official: “power corrupts, and absolute power corrupts absolutely.”

Commenting on both SB 827 and AB 2923, Keller referred to “the inability of local jurisdictions to get [housing] projects approved.” But he also voiced his “strong conviction” that “these decisions are best made at the local level.” In any case, “the market does not support this kind of housing.” The Pittsburg Bay Point station has “acres of land” nearby, but “the numbers don’t pencil out.”

BART Board elections and RM3

As more and more people find out about SB 827, opposition is growing. The bill has become a major factor in San Francisco’s mayoral election. It may well figure in the city’s supervisorial races and in the BART Board elections as well.

BART Directors have staggered four-year terms. In November, Keller, Raburn, Blalock, and Josefowitz will be up for re-election. Raburn is running. His district covers Alameda and southern Oakland. The endorsers listed on his campaign website include Bay Area Council CEO Jim Wunderman, the Building and Construction Trades Council of Alameda County, and Oakland City Councilmembers Rebecca Kaplan and Dan Kalb, who’s running for the 15th District Assembly seat.

Josefowitz, however, is running for District 2 Supervisor in San Francisco. Prohibited by State law from running for two offices at once, he unsuccessfully sued the city to have the election moved up to June. His attorney argued that the San Francisco City Charter calls for limiting the amount of time a political appointee can remain in office; his opponent, Catherine Stefani, was appointed by former District 2 Supervisor Mark Farrell after Farrell became Interim Mayor in the wake of Ed Lee’s untimely death in December. Had Josefowitz prevailed in his lawsuit, he could lose the Supervisor race in June and still run for re-election on the BART Board. Now he has to win in District 2, or he’ll be out of office.

In June, Regional Measure 3 will be on the ballot in all nine Bay Area counties. RM3, as it’s familiarly known, would raise tolls on all the region’s bridges but the Golden Gate by $3. The $4.45 billion measure includes nearly a billion dollars for BART: $500 million for “expansion BART cars,” $375 million for Phase 2 of BART’s expansion to Silicon Valley, and $50 million for new transbay BART tube and approaches—in all, $925 million.

Will Bay Area voters who care about local democracy, fiscal responsibility, and social justice protest the BART Board’s support for SB 827 by voting No on RM3?