About that Memorandum of Understanding with DLCD on the SRC

So yesterday the City announced that the Department of Land Conservation and Development was dropping their appeal to the Land Use Board of Appeals on the Salem River Crossing and Urban Growth Boundary.

The beginning of the Memo of Understanding

It was a negotiated settlement, and the terms of the agreement are set out in a Memorandum of Understanding, which will lead in two or three months to a more formal Intergovernmental Agreement.

So what does it mean?

Superficially it is easy to read it as a bit of a sell-out.

From the City's press release:

the City and DLCD came together to create greater understanding of the issues and identify areas of agreement. These meetings were facilitated by the Governor’s Office Mid-Valley Regional Solutions program, and included the Oregon Department of Transportation.

The City and DLCD agreed on a path forward and to work cooperatively on the issues of transportation choices raised in the appeal.

In the absence of a more detailed explanation, it is not difficult to imagine that the Governor and ODOT together pressured the DLCD to drop the appeal, and this "settlement" was the outcome.

It puts aside the main question: Was the UGB expansion warranted and necessary? and instead shifts to smaller questions about transportation options and demand management, in a context that assumes the bridge is necessary and that the UGB expansion was reasonable.

This reads like an important dodge rather than meeting the difficulties of the case head-on.

So what then is the first concession the City seems to make?

[The] City shall adopt a policy that, for the first 10 years after the Record of Decision is issued, the City will only pursue design and construction of a first phase of the Project that includes only construction of one two-way span of the bridge, Marine Drive, and other surface transportation improvements, including pedestrian and bicycle facilities, required to support the first phase.

The City promises to stage the bridge, building only Marine Drive and one Span. This looks a little bit like the "local" bridge some have called for. And maybe it alone would be sufficient.

How much of a concession this really is depends on your assessment of how much you think the City was actually going to be able to build in 10 years anyway.

If you think that the Feds were actually going to pass a massive infrastructure program, and that this project was a good candidate, then maybe this counts as a real concession.

If you think that funding the Bridge was going to be a real challenge no matter what, and that big construction was not likely in 10-year horizon, then this isn't very much of a concession.

The next concession is more interesting.

City will include a congestion pricing model as part of the Project funding strategy development (A congestion pricing model need not include congestion pricing for the existing bridge facilities).

But what does this mean? Tolling has been talked about a lot and makes a lot of sense. But tolling the bridges is explicitly called out here as optional. So what other kind of congestion pricing might Salem initiate? From here that seems like a fantasy, but maybe there are City staffers or DLCD staffers who have something else in mind. This will be fascinating to learn more about - if it also seems improbable at the moment.

In any case, the agreement seems to commit Salem to congestion pricing if they want the SRC, and it will no longer be possible to wave it away as idle talk.

Going down the list, there are paragraphs on mixed-use housing, on improved transit, and more capital projects for walking and biking. These are vague and seem like restatements of things the City is already supposed to be doing.

Adopted benchmarks - Comprehensive Plan

Then there is a section that seems to relate to the "benchmarks" adopted in the dispute over "periodic review."

On or before May 1, 2017, the City shall provide to the Department a report on actual performance in 2015 for the City’s adopted performance standards (benchmarks) for increasing transportation choices as set forth in the Salem Area Comprehensive Plan (Plan).

If any 2015 benchmarks were not met, then by May 1, 2018, the City shall analyze why they were not met and then shall prepare and present to its City Council for adoption, in consultation with the Department, amendments to the Salem Transportation System Plan (TSP) that will enable City to meet future benchmarks.

The 2015 benchmark for bike lanes is that 58% "of streets designated to have bike lanes that are striped with bike lanes" and then in 2030 coverage will have grown to 70%

I'm not sure the City has actually formally assessed this. So having that formalized would be good. But in the context of a goal for 2030, 70% coverage seems quite weak. There's no reason that shouldn't be much closer to 100%.

The DLCD knows these are weak benchmarks, and added a wrinkle.

Alternatively, the City may, with approval from the Land Conservation and Development Commission (LCDC), as provided in OAR 660-012-0035(5), replace the City’s existing benchmarks with new standards, that can be tracked consistently over time, that are consistent with the City’s and Department’s objectives to increase transportation choices.

So maybe that's an important part of the DLCD game here - effectively to get the City to revisit the fight over "periodic review" and to adopt benchmarks and a process more like what they had envisioned a decade ago.

But if that is true, it is disappointing they did not attack the case for the SRC and UGB expansion on the merits. attack it directly, and instead chose to relitigate a battle from ten years ago, as if institutional memory and scars were more important than asking "what is good for Salem?"

The next section is hard to understand.

On or before March 15, 2017, the City shall provide to Department an analysis, including citations identifying specific evidence contained in the Decision (such as the technical reports), that [s]upports a finding that the travel projections used in the Decision assume reductions in vehicular travel demand and increases in mode share that equal or exceed the shifts that would result from meeting the benchmarks.

Since the benchmarks are weak, this seems like far from a sure thing. Just thinking about it in a casual way, the assumption of an 8% reduction might be stronger than the reduction calculated from meeting the benchmarks. This requires more thought, but this does not on the surface seem like much of a concession from the City. Maybe you will know of a reason this is wrong.

What next?

In the near-term, if the Intergovernmental Agreement comes before there is a Ward 6 Councilor, a bloc of four Councilors could block it, and if it comes after, a bloc of five could reject it. But the window for DLCD to join the appeal would have disappeared. The MOU is a little sneaky in that way. Even without Council action, it effectively takes DLCD out of the appeal process.

The citizen-led appeal is still going, but DLCD won't be helping them, and the decision may lead to pressure for them to drop it.

Longer-term, I guess DLCD is betting that

1. Congestion pricing will not be popular, and will kill the project
2. If congestion pricing is somehow approved, the pricing will solve congestion and eliminate the need for the full project.

As I read it, this is the key. Most everything else is filler and detail.

It doesn't seem like a very strong set of concessions, though, for dropping the appeal. DLCD may have had more leverage - if they didn't, if the City was confident they had a much stronger case, wouldn't the City just have said "go ahead, make my day, I'll see you at LUBA"?

Maybe you will see some detail or implication that crystallizes a very different reading of the agreement, but for the moment it seems weak and disappointing.

Postscript

Here's more context for the Memo and a little bit of help in interpreting it.

Thrifty, I guess - They're still using Gov Kitz letterhead!

For the January 27th meeting of the Land Conservation and Development Commission (the Board to which the Department reports, like the relation of the OTC to ODOT) there was a letter seeking approval to appeal. 

Interestingly, in the letter DLCD talked about mediation. They

would prefer to resolve the dispute with the City of Salem through mediation by the Regional Solutions Team or in another forum. The department proposes to suspend proceedings at LUBA to give time for other methods for accomplishing the objectives of the appeal.

Maybe this is a departmental preference. The City site described part of the protracted battle over the "periodic review" this way:

On March 6, 2006, the City appealed the DLCD Director’s decision....A mediation effort was attempted beginning in February 2007 but did not lead to a settlement.

It might be that the preference for mediation comes from within the department rather than something imposed (or strongly urged) from outside by ODOT or the Governor. It might be that DLCD shies away from confrontation and the adversarial method of the courts. On the other hand, this could still be language to cover pressure from outside agencies or the Executive. (Whatever it is, that is two cases now where mediation has led to a sub-optimal outcome!)

In the event an appeal is deemed necessary, some of the official grounds to justify an appeal are to settle interpretation of statute or rule, and the letter referenced these. But in settling and being fine with not going to LUBA, apparently DLCD felt that there was not a strong need for "clarifying state planning law" or for "enforcement value" in this particular situation.

More specifically, the settlement in the Memorandum of Agreement concentrates on the three "increase transportation choices" issues, but does not address the fourth "needs cannot reasonably be accommodated on land already inside the UGB" issue. I guess DLCD just gave up on that part - although for many of us that has seemed like one of the most important elements of critique. Maybe more will come later out about their reasons for this renunciation.

In fact, in general they seemed to have acceded to a lot of the City's positions, noting in the letter that six of the "concerns" were sufficiently addressed - and as we have noted, there are many items of concern that DLCD declined to address at all.

I don't see anything in the letter, though, to alter the judgement that DLCD's decision to settle, indeed the whole of DLCD's position, expresses a weak critique of the UGB expansion and a weak defense of the values of the UGB and good land use planning. (But again, maybe you will see something else of importance that requires revising this opinion.)

Here is some of the material (in italics throughout) from the DLCD letter to LCDC:

Excerpts from the Letter

B. Department Concerns
In letters to the city on September 27, 2016 (Attachment C) and October 12, 2016 (Attachment D), the department noted ten separate issues of concern. Since adoption, the department has reviewed the city’s updated Findings Report dated October 4, 2016 and the Supplemental Findings Report dated November 15, 2016. The department is satisfied that the city addressed six of the original concerns to a degree that does not merit appeal. Four of these issues remain, within two subject areas:

Increase Transportation Choices
1. The TSP must determine transportation demand based on the city accomplishing their benchmarks for increasing transportation choices (OAR 660-012-0030(4)).
2. The TSP, including the project list that is proposed to be amended, must “be designed to achieve adopted standards for increasing transportation choices” (OAR 660-012-0035(4)).
3. All statewide goals and administrative rules are applicable when amending a UGB (OAR 660-024-0020 (1)); including requirements to have an up to date report and evaluation of progress made in meeting benchmarks to increase transportation choices (OAR 660-012-0035(7)).

Reasonably Accommodate Need within the UGB
4. The UGB expansion needs to demonstrate that there is no alternative within the existing UGB that would reasonably accommodate the need (OAR 660-024-0050(4)).

[...]

IV. ANALYSIS
(a) Whether the case will require interpretation of a statewide planning statute, goal or rule. The case requires the interpretation of rules in OAR chapter 660, divisions 12 and 24. For several rules, the department determined that the rule applies, but the city determined that the rule did not apply, or omitted any mention of the rule. For other rules, the department determined that the city’s findings do not adequately address an applicable rule.

The department advised the city about two requirements in the transportation planning rules that needed to be addressed in the decision:

OAR 660-012-0030(4) provides, “In MPO areas, calculation of local and regional transportation needs shall also be based upon accomplishment of the requirement in OAR 660-012-0035(4) to reduce reliance on the automobile.” OAR 660-012-0035 requires that “local TSPs shall be designed to achieve adopted standards for increasing transportation choices and reduce reliance on the automobile.” (Letter from DLCD to City of Salem, October 12, 2016, page 3)

The city interpreted these rules differently and concluded that they did not apply:

The criteria cited by commenters (OAR 660-012-0030(4) and OAR 660-012-0035(4)) apply to overall updates to a local Transportation System Plan and/or to performance of the transportation system as a whole. They do not apply to specific transportation projects or to targeted amendments to a TSP (as is the case here). As a result, neither of these criteria are applicable to the proposed UGB and TSP amendments in isolation. (City of Salem, Supplemental Findings Report, section 2.1.3.1)

The department advised the city that the city has not reported on progress on increasing transportation choices, which is a necessary part of a UGB expansion and a TSP amendment:

The findings do not address OAR 660-012-0035(7), which states: local governments shall evaluate progress in meeting benchmarks at each update of the regional transportation plan. Where benchmarks are not met, the relevant TSP shall be amended to include new or additional efforts adequate to meet the requirements of this rule. (Letter from DLCD to City of Salem, October 12, 2016, page 4)

The requirements of OAR 660-012-0035(7) were not addressed in the findings, nor in the supplemental findings.

The department advised the city about the analysis that would be required to show that need could not be reasonably accommodated on land already inside the UGB as required by OAR 660-024-0050(4).

However evaluating a single alternative within the UGB may not be sufficient to “demonstrate that the estimated needs cannot reasonably be accommodated on land already inside the UGB” as required by OAR 660-024-0050(4). The findings should analyze whether the aspect that makes an alternative unreasonable is inherent to being within the UGB (and thus any alternative within the UGB would also be unreasonable) or whether the unreasonable aspect is specific to that alternative (and thus different alternatives within the UGB could be reasonable).

The department has previously provided advice on how to analyze the reasonableness of alternatives. The first step is to identify the factors that will be evaluated (for example: cost, traffic, congestion, residential dislocation). The second step is to select and justify thresholds (for example: 25 percent worse than the preferred alternative) that will determine whether an alternative is reasonable.

The city interpreted “reasonably accommodate” as applying only to alternatives analyzed through the environmental impact statement required by the National Environmental Protection Act, and did not specify how alternatives were evaluated to determine if they were unreasonable.