Friday, June 2, 2017

SRC Land Use Case Scheduled for Oral Argument July 13th

Last month it came out the Third Bridge has a date for oral argument, June 15th July 13th.

June 15th July 13th it is! (See revision in comments)
The Responses and Answering Briefs from the City and their Portland attorneys have also been submitted, and in a broad and basic way, on several matters, the City appeals to procedural readings as well as consideration of the whole in preference to more specific readings of parts of a process and readings that use plain, ordinary English constructions. They restate and extend the logic of the "Findings" reports and don't seem to develop much in the way of new argument. I was expecting something less repetitive, I guess. Hopefully this repetition is a sign of weakness, not of strength!

This is a non-lawyerly interpretation of things, of course, and tries to approach the "plain language" meaning of a text, which isn't always the legal or effective meaning of a text. From here the City's claims read as attempts to exploit loopholes rather than as good faith efforts to meet state and local policy goals. Mostly the City claims to meet policy language on technicalities rather than on things we would broadly agree meet the plain meaning and intent of the language. The focus is on weaselly words, and not deeds; talk, but not walk.

Even if it turns out that the City's arguments are legally effective, as they might indeed be, they are weak sauce.

We just pretty much ignore these
(or satisfy them procedurally rather than substantively)
More than anything, what we have seen at the Blind School in the appeal to LUBA, and again may very well see here, is that there are too many gaps between our high-level policy language and the statutes, codes, and rules by which we seek to enact that policy. We read policy statements and we might think that they mean something, but too often they don't really. We have a system of rules and policies that - maybe by design! - leaves plenty of room to exploit the gaps so we never have to do what it looks like we say we're going to do. When we do achieve results, they are more often symbolic than structural, more ornamental than transformative. The big results, the big actions, remain autoist and "business as usual," at odds with many of the goals and aspirations in our policies.

In addition to everything else, when we amend the TSP, when we amend the Comprehensive Plan, when we formulate high-level policy, we should also consider more strongly ways we might also need make corresponding changes to the Salem Revised Code so that our policy goals have actual, enforceable teeth in statute.

Response on Policy 1G

Improve efficiency before adding capacity
(Oregon Highway Plan, Policy 1G)
From the City's Response to criticism that the City is slighting Policy 1G in the Oregon Highway Plan:
Petitioners ignore a critical provision of Action 1G.1 and attempt to introduce a too strict standard.

In the first instance, Petitioners ignore the highest priority measure in Action lG.l, which is to "protect the existing system." As explained at length in the findings...the existing system is at or over capacity and the measures that Petitioners identify will not address those issues and will not result in the "protection of the existing system."

Moreover, Petitioners attempt to hold the decision to too high of a standard. OHP Action 1G.l was also at issue in Friends of Eugene v. City of Eugene, 44 Or LUBA 239 (2003). In that case, the petitioners also alleged that the local government had not adequately evaluated alternatives that met higher priority provisions. LUBA concluded that "The challenged findings adequately explain that West 11th Avenue is failing to adequately serve local traffic and regional through traffic and will fail more severely if efforts to address the problem are limited to priority one through three measures." 44 Or LUBA 280. The same is true here - as explained at length in the findings...the current bridges are failing to adequately serve local and regional traffic and they will fail more severely if solutions are limited to priority one through three measures. As explained in the findings and confirmed by ODOT analysis...priority one through three solutions will not adequately resolve the identified issues and the decision properly found that the new bridge is consistent with OHP Action lG.l. [footnotes and internal citations removed for clarity]
The City here is arguing that "implementing" doesn't actually mean "do/fund/construct something." It means instead that models and theory and analysis are sufficient to mean "implement": "As explained in the findings and confirmed by ODOT analysis...priority one through three solutions will not adequately resolve the identified issues."

This is a way that we drain policies of intended meaning.

However, the appellants point to an appendix to the Oregon Highway Plan, which appears to suggest in plain English that "implement" does mean "do/fund/construct something."

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."

It seems like there is a real clash here, and it will be interesting to see with whom LUBA concurs. The case on which the City seems to depend is from 2003, and I wonder if, since law is always situated in a history, LUBA's understanding of the limits of traffic studies, the demands of climate change, the biases of of autoism and benefits of multi-modalism will lead them to revise that case and establish a new precedent and standard here. The reading offered by the appellants is far a more natural, plain English, understanding of "implement," and LUBA should not have to stretch far to find for them. It's the 2003 reading that is unnatural and forced, and LUBA should have an interest in correcting this. (But I don't know how free they are to create new precedent; maybe they are tightly bound by past case law and are not free to revise a past decision. The appellants argue that this 2003 case is not relevant, but it would be more interesting for LUBA to say it is relevant, and that it needs to be revised.)

Response on OAR 660-012-0035(4)
As noted in the findings, it does not appear that OAR 660-012-0035(4) imposes any particular obligation on the City in this proceeding. Subsection 4 consists of three sentences. The first sentence states that "TSPs shall be designed to achieve adopted standards for increasing transportation choices and reducing reliance on the automobile." There is no doubt that the City has a TSP and that TSP has adopted standards and benchmarks for increasing transportation choices. See...the City's findings regarding OAR 660-012-0030(3), which discuss the benchmarks and standards in the City's TSP. The second sentence states that "adopted standards are intended as means of measuring progress" towards certain goals, including increased transportation choices and reduced reliance on the automobile. This sentence imposes no obligation or requirement on the City; it simply states what the adopted standards (later identified in OAR 660-012-0035(5)) are intended to do. Since the City's TSP has such standards and those standards are designed to accomplish the required goals, again the City is in compliance. Finally, the last sentence of OAR 660-012-0035( 4) provides that "it is anticipated" that cities such as Salem will accomplish the goal of reducing reliance on the automobile by "changing land use patterns and transportation systems." As with the rest of the provision, it does not direct the City to take action or provide any standards against which to judge the City's Decision....

As noted above, the City does have adopted enforceable standards, but Petitioners do not allege that the City's Decision violates those standards in any way; instead, Petitioners ask LUBA to "remand the City's UGB and plan amendments and direct the City to provide evidence that shows that the City is in compliance with OAR 660-012-0035(4)." Pet for Review, p 12. Even if LUBA were inclined to accept Petitioners' interpretation of that provision, as discussed above, the City has in place adopted benchmarks and standards and has already demonstrated that it is in full compliance with OAR 660-012- 0035(4).
This is totally procedural. The City says, Even if we have bad or empty benchmarks, as long as we have benchmarks, we are in compliance!

Unfortunately, it may very well be true that
it does not appear that OAR 660-012-0035(4) imposes any particular obligation on the City in this proceeding....This sentence imposes no obligation or requirement on the does not direct the City to take action or provide any standards against which to judge the City's Decision
and that there is no enforceable standard beyond having benchmarks, which may or may not actually contribute substantially to a goal.

But note here: The City is totally arguing that they can evade substantive action, that empty forms are sufficient.

As I read the arguments, I am less optimistic about LUBA siding with the appeal, and instead think they will side with the City.

One of the things that stood out about the LUBA decision on the Blind School is that when high-level policy language is not further instantiated in Salem Revised Code, LUBA and other authorities are able to find that there is no "particular obligation" for the City to do anything or an "enforceable standard" by which their actions can be judged.

If we are serious about something, we need to write it into statute and city code. (This is the case below with regard to SRC 300.1110.)

This is a reason why new high-level policy like a "Climate Action Plan," a new City "Strategic Plan," or new Commissions and Boards are too often ornamental and not very effective. When push comes to shove, without corresponding language in SRC, the high-level policy language can be disregarded or neutralized.

Response on Goal 1

The argument On Goal 1 is also procedural, focusing also on the whole of the SRC process, and not on the particular legislative decision on the UGB expansion.
As Intervenor correctly points out, a violation of Goal 1 exists only in cases where a local government fails to comply with its acknowledged citizen involvement program ("CIP"). Holland v. Lane County, 16 Or LUBA 583, 597-98 (1988). Intervenor relies on a provision in Goal 1 requiring participation in "all phases of the planning process" as the basis for claiming that the city erred by inviting the public to review only the final alternative. However, the participation in "all phases" language appears in the language of the statewide goal and not in the city's acknowledged plan or regulations. Therefore, the "all phases" language in Goal 1 cannot be used as a basis to remand this decision.

The City's CIP is set forth in the Salem Comprehensive Policies Plan (SCPP), 1 an element of the City's comprehensive plan, known as the "Salem Area Comprehensive Plan" or SACP, and the Salem Development Code. The most closely related acknowledged plan policy, Policy 22, states in relevant part that "neighborhood groups ... be included in the planning process." This plan policy does not provide any specific requirements for the timing or level of participation necessary to satisfy the policy. Instead, the city's obligations to ensure involvement are set forth in the city's land use regulations at SRC 300.1110. Intervenor does not suggest that the city's review procedures related to the participation issue violated any requirements of SRC 300.1110.

The only independent obligation that the City may have to provide for participation in all levels of the process comes from Goal 2. It provides, in relevant part, that: "Opportunities shall be provided for review and comment by citizens and affected governmental units during preparation, review and revision of plans and implementation ordinances." To the extent that this imposes an independent obligation to allow for participation on all levels, it is satisfied in the following ways....

Based on the above [SRC planning process from 2006 to 2013, before the UGB matters], LUBA should conclude that, to the extent Goal 2 requires opportunities for public participation throughout the planning process, it was provided through online surveys, open houses, work sessions and other opportunities to solicit materials....

In sum, it is difficult to understand how the neighborhood association or its members were deprived of an opportunity to participate in the multiple phases of this adoption process, when most of the documents that gave rise to these implementing ordinances were available years before the legislative hearing procedure commenced, when the public was afforded numerous opportunities to participate in each stage of the design process, and when the City went above and beyond its own requirements in notifying the public about the local Plan and UGB amendments and providing opportunities to comment on them. Neither Goals 1 or 2 or the City's CIP required any specific level of participation in the process beyond that mandated by the City Development Code and the City fully complied with its code. Therefore, the City's approach of maintaining a website, holding work sessions and open houses, was sufficient to keep citizens involved in the process and should be affirmed.
From here these seem largely wrong or unworthy, attempts to deflect criticism by saying, "We had great process and participation five years ago! It's not necessary to have great process and participation today." But if this gaseous and expansive notion of process expresses generally accepted standards and is legally effective, then there may not be much to do.

Again, the City may be able to hide behind the totality of a process and not grapple with ways that the events around a particular hearing and decision point may not meet the intent of Goal 1.

But if LUBA wanted to clarify the ways that the parts of a process should also exemplify "citizen involvement," maybe they would dig into this matter.

(There are three other formal "assignments of error," claims by the appellants about mistakes the City made, and maybe there will be more to say later. These three here were the first ones of interest.)

Anyway, this is all idle speculation at this point. In an essential way, it doesn't matter who has a more truthful case. It's about what is legally effective, and what citizens might think is the plain meaning of something is often not what is the legally effective construction of it.

So we'll see what LUBA says.


In the end what is most striking - but unsurprising - is the chasm between the language of the City's case here that systematically seeks to evade any requirements or interest in a genuinely multi-modal transportation system and the occasional outbursts of cheery sentiments for walking and biking.

Beginning of Dan Burden City workshop
May 24th - via Twitter

At the end of the workshop - via Twitter
If the City were serious about walking and biking, serious about health and safety, serious about reducing reliance on drive-alone trips, they would not be proposing to suck a billion dollars of transportation funding for a giant bridge and highway, and would not have such a zeal for evading requirements - or even recommendations - to "increase transportation choices and reduce reliance on the automobile":
it does not appear that OAR 660-012-0035(4) imposes any particular obligation on the City in this proceeding....This sentence imposes no obligation or requirement on the does not direct the City to take action or provide any standards against which to judge the City's Decision
Hopefully on one or more grounds LUBA will remand the decision back to the City and our new Council can take a closer look at the gaps between talk and walk, and place a greater emphasis on the walk.

1 comment:

Walker said...

There has been a schedule change; an order changing the hearing to 13 July is likely in the mail at this moment.