Monday, October 17, 2016

Two Interpretive Questions: Goal 1 for Part or Whole? What does Implement Mean?

In looking more closely at the Findings Report for the SRC actions, two centers of interpretation jump out.

One is whether Goal 1 on Citizen Involvement refers severally and individually to the parts of a process or whether it refers principally to the totality of a process.

The other involves several policies and requires a determination on what the word "implement" means.

Maybe these are grasping at straws and, especially in compressed time frames, it is difficult for interested citizens to discern marginal side issues from central key issues.

But it seems like an awful lot of the case for the UGB expansion right now depends on a particular interpretation of each of these. If those interpretations are wrong, then it does not seem difficult at all to say delay or even a halt is necessary.

On Goal 1 for Citizen Involvement

In the blizzard of documents the SRC team has posted to the City website, one of the most important is the Findings Report. As I understand it, this is most of the formal legal and technical argument to justify the UGB and TSP actions.So it is worth a closer reading. In fact, it may be the most important document to read, as one important avenue for criticism is to contest directly the claims that are made in it.

That right there should be a prima facie case that there must be reasonable time for citizens to read and analyze the document. Citizens need to have time to absorb and respond to it.

Interestingly, its analysis of Statewide Planning Goal 1 wholly avoids this question, and instead focuses on the entirety of the 10 year process. The analysis trades on a slippery notion that the information has been out there for a very long time!

The NEPA process has been 10 years long!

We mailed notice to people
and created a website!

There is a long history of public involvement!
Even though there's nearly three pages of text here, I see it boiling down to this:
Generally, Goal 1 is satisfied when a local government follows the public involvement procedures set out in its acknowledged comprehensive plan and land use regulations. Outreach and citizen involvement have been a central part of the NEPA environmental process for the SRC project for about ten years....

In summary, there has been a long history of public involvement in the NEPA process for the SRC Project....
The question comes down to other rulings and case law I guess. What does "planning process" refer to in this phrase: "Goal 1: Citizen Involvement - To develop a citizen involvement program that insures the opportunity for citizens to be involved in all phases of the planning process."

If it only or mainly refers to the totality, then sure, the NEPA process has been a decade long. That's true. And the recitation of the "long history of public involvement" may satisfy the requirements.

But if it refers to the specific land-use matter at hand, the proposed UGB expansion and TSP amendments, then the process has been very compressed by design and lacks a "long history of public involvement."

And if it refers to the specific matter, then it fails broadly on these additional subgoals or policies from OAR 660-015-0000(1):
  1. Citizen Involvement -- To provide for widespread citizen involvement.
  2. Communication -- To assure effective two-way communication with citizens.
  3. Citizen Influence -- To provide the opportunity for citizens to be involved in all phases of the planning process.
  4. Technical Information -- To assure that technical information is available in an understandable form.
A separate subgoal is also relevant:
  • Adoption Process – The general public, through the local citizen involvement programs, should have the opportunity to review and recommend changes to the proposed comprehensive land-use plans prior to the public hearing process to adopt comprehensive land-use plans.
If I read the four numbered subgoals above in light of the "adoption process" paragraph, it seems obvious that there has not been an adequate "opportunity to review and recommend changes to the proposed comprehensive land use plans prior to the public hearing process." One of the paragraphs in the Findings would discuss the publication of the document, how much time had been allotted for a public response to it, and what some of the characteristics of the plan for public outreach would look like. But there is nothing like this.

So, again, if the settled law and interpretation on the matter is that it is the totality that matters, not individual milestones and hearings, no matter how substantial, then we're screwed.

It is interesting, then, that the letter from DLCD does not address Goal 1 compliance at all. Maybe this is a sign that it is the totality only that matters. It touches only on:
  • Population forecast
  • Goal 10 on multifamily housing
  • Goal 12 and transportation
  • Goal 14 on the UGB
The previous letter also touched on Goal 15 on the Willamette River Greenway.

So maybe the DLCD already knows Goal 1 only applies to the totality.

But if Goal 1 needs to be applied severally to each individual milestone in a process, it seems like there's a clear case that the SRC is not at all compliant at this moment.

A Question on the Interpretation of Implement/Implementation

With all the pieces together now in the Findings, it appears that some key justification for the SRC depends on a particular interpretation of the word "implement" and its variations. This is actually something of an interpretive crux.

Throughout several moments in the Findings analysis, there is the utter dependence on an assumption
that the increase in transit, ridesharing, other demand management techniques, and bicycle and pedestrian use for trips across the existing bridge will reduce peak-hour vehicle volumes by 8 percent compared to volumes if these efforts were not implemented.
This is like magic! We can assume all these things that we haven't yet done in order to justify some other future action.

Does assuming these actions actually constitute "implementing" them?

Alternately, does the study and the assumption of its outcomes give you a pass on implementation or function as a substitute for implementation?

Three moments in the Salem Comprehensive Plan, the State Highway Plan, and the Statewide Planning Goals assert that assuming these actions does constitute implementing them.

Salem Comprehensive Plan

Findings Report
System Efficiency
(12) The implementation of transportation system and demand management measures, enhanced transit service, and provision for bicycle and pedestrian facilities shall be pursued as a first choice for accommodating travel demand and relieving congestion in a travel corridor, before widening projects are constructed.
(13) The Salem Transportation System Plan shall identify methods that citizens can use to commute to work and decrease overall traffic demand on the transportation system. Such methods include transit ridership, telecommuting, carpooling, vanpooling, flexible work schedules, walking, and bicycling.
Findings - System Efficiency:
As summarized in Chapter 2 (Project Background) of this Findings Report, the General Corridor Evaluation (2002), the Alternate Modes Study (2010), and the SRC Project DEIS (2012) included a robust consideration of alternative modes, transportation system management measures and demand management measures that could reasonably meet transportation needs, alone or in combination. The findings to address Criteria 660-024-0050(4) (page 92) are incorporated by this cross-reference and explain why a stand-alone alternate modes/TSM/TDM Alternative could not reasonably meet the identified transportation needs set forth in the purpose and need statements in the DEIS (see Section 2.4.2). However, the No Build and all Build Alternatives evaluated in the DEIS were designed assuming that the future peak-hour traffic volumes across the river (year 2031 for the DEIS and year 2040 for the FEIS) would be 8% less than those forecast in the SKATS regional traffic model. In other words, assuming a substantial increase in alternate modes/TSM/TDM was built into the transportation modeling for the SRC project to ensure that the future need of highway capacity was not overstated.
So what does "the implementation of [things]...shall be pursued as a first choice for accommodating travel demand" mean?

The Findings Report offers this interpretation: "the study of [things]" is sufficient to meet our Comprehensive Plan's requirements.

As I read it, the Comprehensive Plan requires the "implementation" of [things], not merely the study of them. And it requires that they fail first before widening.

So that's a bit of an interpretive crux. How has LUBA and others interpreted the word "implementation"? Is study that claims the implementation will fail sufficient to get around a requirement to implement?

decrease reliance on the SOV

decrease overall traffic demand
(Salem Area Comprehensive Plan,
Section J on Transportation)
The Findings also omit a discussion or analysis of policies 11 to "decrease reliance on the SOV" and 18 for "alternative travel modes other than the SOV." That's a real gap in the analysis.

Statewide Highway Plan

Findings Report

So here's some obfuscation:
The background information in Section 2.3 (page 37) and the findings in 660-024-0050(4) (page 92) that address the priorities for major improvements articulated in Policy 1G are incorporated by this cross-reference to show compliance with the policy.
WTF. Right. That's a barrier to citizen involvement right there. Every last damn one of the Technical Addenda has an "introduction" for section 1 that is the same boilerplate, report after report. Even if it was just a copy-and-paste job, they could have duplicated material from page 37 and 92 in the Findings Report. That cross-reference run-around just makes it difficult. (But for the record, the text "Policy 1G" also doesn't appear anywhere near pp. 37 or 92, instead appearing only in a very vague and general discussion on p.150. There is no developed analysis of compliance with Policy 1G. So this whole bit is something of a dodge. This is also consistent with the DLCD's observation that there are quite a number of gaps in the Findings analysis, including a different "circular cross-reference, [that does] not address Policy 1G.)

Anyway, we come back to the word "implement." In the Highway Plan, Policy 1G says to "implement" higher priority measures first. "Better access for alternate modes" is a higher priority than "adding capacity." 

Improve efficiency before adding capacity
(Oregon Highway Plan, Policy 1G)
So what does "implement" here mean? Is "study" sufficient? Or do you actually have to construct and do stuff? By implication and extension, the Findings Report claims study is sufficient - though, again, they do not make this explicit claim with specific reference to Policy 1G.

OAR 660-012-0035(4)

Findings Report
Criteria – 660-012-0035(4):
(4) In MPO areas, regional and local TSPs shall be designed to achieve adopted standards for increasing transportation choices and reducing reliance on the automobile. Adopted standards are intended as means of measuring progress of metropolitan areas towards developing and implementing transportation systems and land use plans that increase transportation choices and reduce reliance on the automobile. It is anticipated that metropolitan areas will accomplish reduced reliance by changing land use patterns and transportation systems so that walking, cycling, and use of transit are highly convenient and so that, on balance, people need to and are likely to drive less than they do today.
Findings – 660-012-0035(4):
The proposed amendments to the acknowledged Salem and Polk County TSPs are designed to increase transportation choices and reduce reliance on the automobile. As discussed earlier, the DEIS and FEIS transportation analysis assumes that the increase in transit, ridesharing, other demand management techniques, and bicycle and pedestrian use for trips across the existing bridge will reduce peak-hour vehicle volumes by 8 percent compared to volumes if these efforts were not implemented. The Preferred Alternative analysis also relies on these assumptions to compare the impacts of vehicular traffic; the distinction with the Preferred Alternative related to alternative modes is that it offers more travel choices for all modes relative to the No Build Alternative or Alternative 2A.

Reducing reliance on the automobile is also the focus of 660-012-0030(3). The findings in Section (page 87) that address this provision of the TPR are incorporated by this cross-reference and summarize policies and benchmarks in Salem’s Comprehensive Plan that have been acknowledged by DLCD. The benchmarks are tied to new dwelling units built in proximity to transit stops and within activity nodes and corridors, jobs in activity nodes, rideshare growth, and increases in critical non-motorized and transit improvements.

The Preferred Alternative will include construction of new bicycle and pedestrian facilities on the new bridge, along with connections to facilities off the bridges. The improvements in connectivity and redundancy gained with an additional bridge across the Willamette River will also expand connectivity and redundancy for bicycle, pedestrian, and transit travel that can help reduce reliance on the auto. As set out in the proposed Salem TSP amendments, the Preferred Alternative includes a new facility that provides infrastructure for transit and non-motorized modes of transportation. The proposed TSP amendments increase transportation choices and make walking, cycling and use of transit more convenient with infrastructure that provides new access for these modes to areas around the bridgeheads, consistent with the requirements of the TPR.
It is interesting that something about "reducing reliance on the automobile" would not look at projected driving volumes and assess it empirically and ask whether it reduced VMT. The SRC's own traffic projections say it will not reduce VMT. Somehow this is not a relevant matter for the Findings to discuss! Nor is any other measure of "reduced reliance on the automobile" proposed and modeled.

They do make reference to some benchmarks, and if I understand the reference right, there is a contested history on them. It's hard to say whether they alone are sufficient to demonstrate "reduced reliance" or if more needs to be developed.

Certainly in the spirit of things, actually reduced VMT would seem to be more directly relevant than the percent of streets designated for bike lanes that actually have them in Salem, which was one of the benchmarks.

Maybe on a technicality these benchmarks meet the requirement. But they are very indirect - and we come back to the question of norms. Because we don't yet have robust public norms around reducing drive-alone trips, we don't employ direct measures on reducing car use, like reductions in VMT or trip counts, and instead measure indirect things like the proportion of bike lane coverage. Which by the way, from 2008 to 2030 is supposed to go from 53% to 70%. That's underwhelming! Bike networks are only as good as they are complete. The fact that we can talk about spending $500 million on a giant bridge and highway without also committing to 100% bike lane coverage and mending key gaps is evidence that we aren't actually very serious about reducing reliance on the automobile. In a plain reading of things, we should commit to 100% coverage before we build expensive new auto infrastructure, and we should want reductions in VMT to show that we are reducing our reliance on the automobile. Reducing reliance should mean actual reductions in car use, not marginal and assumed improvements in bike lane coverage.

Is a Study and its Assumptions really this Powerful?

So we're back to the definitional question: Is the study of something and claims deriving from its conclusion sufficient to meet the need for implementation? Under what conditions can "implementation" be more theoretical than actual?

The whole SRC process is making the 8% assumption do a lot of heavy lifting.

If there is a settled interpretation for "implementation" that allows for it to be mainly theoretical and an outcome of modeling, then we're screwed. But it may be that this is a tendentious and tortuous interpretation of "implementation," and it may be possible to demand actual implementation before widening and a halt to much of the SRC activity.


If there is a well established set of meanings for Goal 1 and for "implementation" that say Goal 1 only applies to the totality and that "implementation" doesn't have to mean actual construction or institutional programming, then there are a lot fewer grounds for criticism of the UGB proposal.

But on the other hand if with these interpretations of Goal 1 and "implementation" the SRC team is talking out of their nether regions, then there are some good reasons to halt the thing, at least temporarily.

Update, May 9th, 2017

Ha! N3B has published the citizen brief filed at LUBA in support of the appeal, and in an appendix to the Oregon Highway Plan and a part we missed, there is a fairly clear definition of "implement":

1999 OHP, updated to 2015, Appendix A, p.201
It says: "Implement: Generally means fulfill or execute...the actual accomplishment of a plan or policy."

By this standard, the measures as part of the 8% assumption have to be funded and executed, not merely talked about theoretically!


Jim Scheppke said...

Thanks for all your analysis SBOB. I wish you would submit testimony to the City before Wednesday. ;-)

I would also add that "Citizen Involvement" opportunities declined very significantly after December 11, 2014 which was the last time that the SRC Oversight Team had a meeting. The project kind of went underground after that, as far as the public is concerned. I find it remarkable that this planning project has not had any "oversight" by elected officials for nearly two years!
At least not any in the public eye as required by Oregon law. There has been no outreach to Salem Neighborhood Associations which is the normal way that the City pursues citizen involvement. Before the public hearing last Wednesday, the only way citizens have been able to provide input recently has been for us to show up uninvited at "public comment" periods at City Council meetings which has not been effective. If Goal 1 has any meaning, it will be found that this project has ignored it for at least the last two years.

Of course another big deficiency in Citizen Involvement is the fact that the SRC Task Force stopped meeting after August 15, 2012. If we were having robust citizen involvement in the SRC we would see a SRC Task Force that still met occasionally to provide their input and an Oversight Team that met regularly to oversee the project and take public testimony.

Salem Breakfast on Bikes said...

Thanks for the kind words! A goal here is to throw stuff out there and share it in hopes that smarter, more informed people might find something of use to refine and improve on. To be a kind of chunky resource. As a form, blogging is sometimes too loose! and it is helpful for there to be a kind of community filtering and collaboration and editorial curation process.

For example, someone might know whether there is a relevant definition of "implement" and could rework and tighten material to make a better case. Or maybe someone would know more about the ways Goal 1 has been interpreted and applied. Or maybe one of these would suggest an entirely new angle.

Or perhaps it is the case that this is definitely grasping at straws and is actually not very relevant at all. Just cranky blather.

If you or others see something to use and improve on, please do so!

Susann Kaltwasser said...

nI have found that over the years the City has done less and less to inform the public. Examples are the dropping of 5 Community staff who used to work with Neighborhood Associations; moving NA out of the Planning Department; reducing the time between notification about any issue to the minimum required by law; reducing the notification area to the minimum required by law; not providing documents in full, but just referring people to a website or go to the Library and see a copy (not checking them out or printed copies); making the public pay for materials; and not producing "focus issues" or documents that explain complex issues and give information on how to follow the issue through the process. These are just a few of the things we have lost since I started to get involved back in the late 1980's. They also give less support to NA by not providing meeting space for NA and no longer offer training conferences on citizen engagement.

So, we can complain, or we can encourage citizens or groups who have special knowledge or interest to put together their own documents for distribution and to make presentations to neighborhood associations and other groups. I think people care, but they do not know how to go about getting good information in a timely fashion

My thinking is that if a citizen group were to take on this task, the City might perk up and do more.

You can complain, or you can do!

Thanks to Salem Breakfast on Bikes for doing what you do to help educate us in the pubic!!

Salem Breakfast on Bikes said...

Updated with what seems to be the actual definition of "implement"!