City Digs in on Alley North of Cemeteries - Whether it's Straight, it's Certainly Narrow

The latest chapter in the saga of the alley by the cemetery continues on Monday at Council. Minimizing possibilities for mobility choice and sustainability, staff recommends affirming the vacation. To do so, the staff report relies on a very narrow interpretation of things.

Narrow Interpretations

The interpretation of "potential" probably makes it most clear.

What does "potential" mean? The City construes it to mean in an "approved or adopted plan," though not necessarily built. Formally planned and intended. That seems overly narrow to me. An "approved or adopted plan" seems like a lot more than merely potential! An approved plan signals intention, and I think potential isn't always intended. Potential is often pre-intention - pre-adopted, not yet formalized, not merely planned-and-pre-constructed, don't you think? I mean we talk about the potential of a child or of a concept, not just about the potential in an adult or in a detailed or formally adopted plan.

The case for vacation in the latest Staff Report relies on a narrow, maybe even tortured, reading of the criteria:

Q: 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.

A: There are no approved or adopted plans in the Salem TSP, or any other planning document adopted by Council, for use of this section of alley right-of-way for public vehicle, bicycle or pedestrian access to community activity centers, nor any approved or adopted plans to use this section of right-of-way as part of the City's compliance with the State TPR or the City's TSP.

Basically, the City maintains that the whole connection and alignment would need to be planned before we could say that the alley in question has the potential to be used. 

Reversal and a Bass Ackwards Stance

But that puts the cart before the horse. If the alley is vacated, there is no potential for it to be used!  In my book, that's a catch-22, and an argument of convenience that I bet the City doesn't make in any number of other situations.

Indeed, in the very first Staff Report, way back in April 2011, they refused this argument.

In any event, the City is of course free to make this latest case. It's kindof absurd, but I'm sure this is far from the winner's podium of tricky legal construction.

More to the point, the City is also equally free to make interpretive choices that are pro-walking and pro-biking. And they are not interested in this. No matter what gauzy and gaudy rhetoric they find for Bike and Walk Salem and Sustainable Cities and stuff, the reality of their interpretive choices are too often anti-sustainable and anti-walking and biking.

Is the Bike Lane on Commercial Sufficient?

In her letter on behalf of Friends of Pioneer Cemetery, Elizabeth Potter echoes a popular understanding of bike lanes on busy roads, a view we now increasingly see is obsolete and misguided.  She writes

Transportation System Plan criterion 2.10(b) states that "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." In the final opinion and order of the Land Use Board of Appeals, the petitioner is reported to have claimed that "the barrier that the two cemeteries currently pose for pedestrian, bicycle and vehicular traffic" makes "travel between the Fairmount and Candalaria neighborhoods inconvenient and in some cases unsafe."

...Today, vehicles can safely enter and leave traffic flow on the arterial at intersections regulated by street lights at Rural Avenue, Hoyt Street, and Boise Street. A bicycle lane on the Commercial Street road bed continues an extended course past the 542-foot street-front of Salem Pioneer Cemetery. A paved sidewalk of standard width in good condition adjacent to the Commercial Street curb serves pedestrians walking between Fairmount and Candalaria neighborhoods. It is well used and poses no apparent hazards. A designated bus stop is available to public transit riders on the sidewalk at the corner of Commercial and Hoyt Streets SE.

In fact, Bike and Walk Salem identified Commercial as a "high crash corridor."

Commercial is a High Crash Corridor:
Bike and Walk Salem Memo 6, Bicycle Needs Identification

The mere fact of a bike lane on this busy road is not sufficient for families with young children, for seniors who might not want to bike near heavy auto traffic, or for people of any age new to biking.  The absence of a low-stress connection makes bicycling more difficult, less safe, and less convenient.

Update, Sunday night...

This is kinda nuts. Here's testimony the developer offered to City Council on January 24, 2005 IN FAVOR of a cemetery path and connection! Maybe something will come out at some point that will make the 180-turn clear. It's a head-scratcher, all the more so since he clearly understands the benefits of a connection, especially for kids.



And we return you back to the City's analysis.

Appendix - The City's Analysis

For the earlier discussion of the three vacation criteria, see here.  (There's not much more to add.)

The City has a very different take. Here is the complete text of the City's analysis for criteria b, d, and e.

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.

Finding: The proposed vacation is consistent with the Salem TSP, and therefore is, as a matter of law, consistent with the State TPR, and no individual findings of compliance with the State TPR or Statewide Planning Goal 11 are required. There are no approved or adopted plans in the Salem TSP, or any other planning document adopted by Council, for use of this section of alley right-of-way for public vehicle, bicycle or pedestrian access to community activity centers, nor any approved or adopted plans to use this section of right-of-way as part of the City's compliance with the State TPR or the City's TSP. Because the right-of-way proposed for vacation is not used for any public transportation purpose, and is not part of any approved or adopted plan for any public transportation purpose, the proposed vacation will not restrict the City's ability to comply with the State TPR and the Salem TSP policies on transportation system connectivity.

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.

Finding: The section of right-of-way proposed for vacation is not part of, or near, a planned transportation improvement. Council has considered this section of right-of-way as part of a potential bike and pedestrian trail through the abutting public cemetery and determined that the right-of-way is not necessary for that trail in the event it is ever planned or constructed, and the benefits of vacating the right-of-way outweigh preserving it for a trail that may not be planned for or constructed at this location.

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.

Finding: The proposed vacation of right-of-way satisfies a compelling public need for the following reasons;

(1) The vacation of the unused alley right-of-way makes the lot lines for the abutting properties consistent with the neighboring lots. The alley in question previously extended from Commercial Street SE along the full length of the cemeteries. The majority of the alley was vacated in 1985, with the exception of this section causing irregular lot lines in this area. The proposed vacation of the remaining portion of the alley will correct the irregular lot lines in this area.

(2) The vacation will return unused public right-of-way to the tax rolls, generating property tax revenue for the various taxing jurisdictions.

(3) The vacation will eliminate the City's jurisdiction over this section as right-of-way and the City's duty to maintain it.