by Lino Sciarretta and Mathew T. Dudley
Population growth in and surrounding urban areas is on the rise and consequently so is transit-oriented development, or TOD, a land-use strategy centered on locations well served by transit that typically includes a mix of land uses and dense development patterns. Westchester County is “actively working with eight municipalities ”¦ affected by work on the Tappan Zee Bridge and I-287 corridor” and “is supporting current (TOD) planning efforts in the individual municipalities.”
The case for TODs
A recent market study performed by Reconnecting America”™s partner, Center for Transit-Oriented Development, found “by 2030, almost a quarter of all U.S. households are likely to want higher density housing near transit.” It is well known the millennial generation is attracted to the wide array of professional and educational opportunities, cultural events, social venues, restaurants and other amenities available to them in a city. These days, empty nesters looking to downsize are moving to multifamily housing developments in locations where the city is easily accessible by public transportation.
These trends have increased demand for high-density residential housing and mixed-use developments within walking distance of train stations and express or rapid bus lines. Land surrounding transit hubs is becoming increasingly more valuable, and successful development, or redevelopment, of TODs in these locations can prove to be a profitable investment for real estate developers so long as certain municipal land use and zoning regulation hurdles can be overcome in an efficient and expeditious manner.
Common barriers
Lot size is usually limited in the most ideal locations for TODs, causing developers to build vertically, with multiple floors on the same footprint. TODs are most successful as mixed-use developments that have commercial, retail or restaurant space on the street level and residential housing ”” rental units or condominiums ”” on higher floors.
However, zoning ordinances and land-use regulations that govern permitted uses, building height, density, floor-area ratios, bulk, coverage, setbacks and parking are common barriers to developing in districts close to transit lines. Many older buildings within these districts are nonconforming under these standards. While some local governments have amended their comprehensive plans and zoning codes to encourage TODs in districts surrounding transit hubs, some current land-use regulations can render TODs physically or financially infeasible.
Petitioning for a zoning change
Developers may seek to adjust or ease these regulatory barriers to TODs by assembling a development team and engaging in early outreach with local municipal officials, their staffs and consultants to gauge whether the municipality would be amenable to a TOD and how to implement the development within the existing character of the community. Given the strict zoning code provisions in some communities, a TOD will often require a developer to petition the municipality for a zone change or text amendment.
The first step in any well-conceived plan to develop a TOD should be to encourage municipal officials to support the development by highlighting the value the TOD will bring to the community by, for example, increasing real property and sales tax revenue, raising property values, providing public open space and possibly reserving space for affordable housing.
A developer proposing a TOD to a municipality must be prepared at the outset with a comprehensive game plan for enacting all necessary zoning changes and approvals. When petitioning for the rezoning of a district, the developer should, among other things, have a conceptual streetscape plan and present recommended design guidelines for the district. A developer would be well advised to address community opposition and concerns by using empirical data supporting the development.
An amendment to a zoning code to add or modify an ordinance to encourage TODs should seek to increase the allowable density and permit mixed-use development. The ordinance may allow for a decrease in setbacks, frontage and lot-size requirements. Depending on the topography, height restrictions also may require easing to facilitate reasonable vertical development where appropriate. In proposing a zoning amendment, the developer should closely examine the inventory of preexisting building structures and design a TOD that maintains the community”™s character. These preexisting structures, which are most likely nonconforming under today”™s zoning standards, serve as a developer”™s baseline for a thoughtful zoning code amendment that would permit a TOD consistent with the community”™s existing streetscape.
In conclusion, the demand for smart TOD is here and will only grow as land becomes less available. Local municipal officials may want to consider, when necessary, reexamining and amending their comprehensive zoning plans and codes to encourage TODs.
Lino Sciarretta is a partner in Wilson Elser”™s White Plains office. He can be reached at 914-872-7790 and lino.sciarretta@wilsonelser.com
Mathew T. Dudley is an as associate in Wilson Elser”™s White Plains office. He can be reached at 914-872-7553 and mathew.dudley@wilsonelser.com.
