Land Use Board of Appeals. The opinion was issued last week, and on Monday published to the web. While there are some legal fine points and procedural wrangling, the main argument of the decision is clear: The City didn't actually assess the proposal using the vacation criteria. Instead of showing how the proposed vacation met the criteria, the City simply said it did. The fiat approach to interpretation isn't sufficient, the Board's decision implies. The City actually has to make a case for the vacation. A victory for common sense!
Back in September, we discussed the criteria for vacation:
The relevant criteria are several, including the Salem Area Comprehensive Plan, Artice IV, Section J(1) on "Transportation," and Salem Revised Code 76.140.The Land Use Board found that the City failed to answer questions 2.10(b), (d), and (e). Their findings were not that the City answered these questions wrongly, as I argued back in September, and as I understand it was also part of the case made to the Board in the appeal, but that the City simply did not conduct an analysis and determine an answer - they just swagged it and said it was so. So this leaves open the possibility that the City could conduct a more thorough analysis and still find that the vacation "does satisfy a compelling public need."
But the most directly relevant language appears to be the policy in the Transportation System Plan (italics added for emphasis):
Policy 2.10 Criteria for Evaluating Proposed Vacation of Rights-of-way Right-of-way vacations may be initiated by the City Council or by private citizen petition. Vacation of public rights-of-way in the city of Salem are governed by State law (ORS Chapter 271) and SRC 76.130 to 76.144. The City shall use the following evaluation criteria in its consideration of a proposed right-of-way vacation:In order:
a. Is the right-of-way proposed for vacation actively used for transportation purposes? Many public rights-of-way, while platted, are either not open or not actively used by the public. Actively used rights-of-way may be considered for vacation conditioned upon the provision of nearby facilities for the existing users and if there is not a significant degradation in transportation services and accessibility in the surrounding neighborhood.
b. Does the proposed vacation restrict the City’s compliance with the State Transportation Planning Rule (TPR) and the Salem Transportation System Plan’s policies on transportation system connectivity? A proposed vacation should not limit, nor make more difficult, safe and convenient pedestrian and bicycle access to community activity centers such as schools, parks, shopping, and transit stops. Additionally, local street connectivity, traffic circulation, emergency vehicle access, and accessibility to transit service should be maintained within and between neighborhoods.
c. Is the right-of-way proposed for vacation improved or unimproved to urban standards? While right-of-way in either condition may be vacated, an improved right of-way is an indication of use and should be more closely scrutinized before recommended for vacation.
d. Is the right-of-way proposed for vacation part of or near a planned transportation improvement? Rights-of-way that have the potential to be used for a future transportation project should not be vacated.
e. Does the vacation of the right-of-way satisfy a compelling public need? Issues that address health and safety concerns may outweigh the transportation criteria listed above and should be given proper consideration.
a. Yes, the right of way is currently used as an alley.
b. The vacation would make a potential bike and walking connection more difficult.
c. The right-of-way is partially improved.
d. The right-of-way has potential for a future transportation project.
e. The vacation serves a private, but not public, need. Retaining the right-of-way potentially serves active transportation needs and public health and safety concerns by making it easier for people to walk and bike.
The Board remanded the case back to the City, and so it seems likely we will have another hearing to look forward to. Since the proposed connection in the Bike and Walk Salem draft plan (it is not yet formally adopted, remember) is at the center of the claim the proposed vacation does not satisfy a compelling public need, opponents will likely redouble their efforts to take the connection out of the plan. Keeping it in the draft plan and final adopted plan amendments will require public support and will be a political process rather than merely a technical one.
Interestingly, the City's argument for the vacation involved the same discussion of "shall/should" and "mandatory" language that we saw at the Planning Commission.
The city argues forcefully that because the word “should” is scattered liberally through the Policy 2.10(a) through (e) criteria those criteria are advisory and nonmandatory....[but] we do not agree with respondents that the Policy 2.10(a) through (e) criteria are advisory, nonmandatory considerations that the city council was free to ignore....The TSP language quoted above strongly suggests that the Policy 2.10(a) through (e) criteria at least fall into the category of mandatory considerations even if they are worded such that they need not be interpreted to apply as independent mandatory approval standards that individual vacation decisions must comply with.So this is a great illustration both of the interpretive freedom the City sometimes takes with what we laypeople might think of as the "plain meaning" of words, and of the importance of not watering down the language in the bike plan, as the City unfortunately too often may be tempted not to follow the intended spirit of the language.
Look for more details on the Remand Hearing soon. (And huge thanks to Bonnie for undertaking the appeal! It's terrifically important to have engaged and critical citizens asking the hard questions.)