Details in Statute too often keep Values Merely Aspirational

On Monday Council will continue and deliberate on the appeal of a proposed large apartment complex in West Salem.

• Agenda item for July 24th
• Continuation agenda item for August 14th

Several of the disputed items repeat themes we have recently seen at the Meyer Farm and at the former Mushroom Plant, themes that reappear over and over in debates over development. 

That the City, developers, and neighbors keep getting sucked into these protracted debates and disputes may mean there is not enough clarity in our development standards. 

Rather than trying to weigh in on this particular proposed development, I want to use it for more general observations.

One particular problem is the way we don't carry higher level policy values into statute, Salem Revised Code.

Here, one of the appeals at the former Blind School in 2014 was clarifying. (You may have discovered this state of things earlier or later, of course.)

At the former Blind School in 2014

This theme is back. An attorney for the developer cites "uncodified elements of the City's Comprehensive Plan" and "unclear standards."

Uncodified elements of Comp Plan

The City may say "we need flexibility," but from climate to trees to safe walking and biking, there are so many instances where our high-level policy statements are effectively just words for show because we don't translate policy language and values into statute.

One of the items is a question about "safe and convenient bicycle and pedestrian access."

What is "safe and convenient"?

Over the years here we've argued that this is a nearly useless approval criterion. Usually it is resolved through lines on a map, whether there is a blue line signifying a bike lane nearby, a very theoretical kind of proof, and not anything most people would agree is in fact "safe and convenient." The revealed preferences of people after these things are built show the "access" is rarely "safe and convenient" and instead induces car trip after car trip.

Related to this is the requirement that many kinds of approval criteria — not all, but many, and which ones is utterly baffling to the general citizenry — employ "clear and objective standards." "Safe and convenient bicycle and pedestrian access" has not been a clear and objective standard; it is more qualitative.

Clear and objective standards

A year ago in August, on an appeal over revisions to the development at the former mushroom plant, LUBA criticized "value-laden analysis" and non-objective standards:

SRC 240.005(d)(3) requires evaluation of whether the proposed use is "reasonably compatible" or will have minimal impact on the "livability" and "appropriate development" of neighboring property. The CUP criteria are intended to balance or mitigate the impact of the proposed development on surrounding properties and require subjective, value-laden judgments. They are not objective and may not be applied to the application. Application of the criteria in SRC 240.005(d)(2) and (3) required the city to engage in a value-laden analysis regarding adverse impacts to surrounding properties.

If we want to instantiate values in the nuts and bolts of development details, we need likely to think more thoroughly about how we translate those values into statute and into objective standards.

Another disputed concept is proof of having considered alternatives.

Citizen design alternative proposed at Meyer Farm

Last year in December LUBA ruled against those who had appealed the plans for the Meyer Farm. One of the arguments was over what constituted proof of having considered and rejected "reasonable design alternatives." LUBA said:

In the first assignment of error, we understand petitioners to argue that the city council misconstrued SRC 808.035(d)(2) in approving intervenor's revised application; that the decision is not supported by substantial evidence In the record; and that the city's findings are inadequate. ORS 197.828(2)(a), (b); ORS 197.195(4).4 Petitioners argue that the city council improperly construed SRC 808.035(d)(2) because, according to petitioners, intervenor failed to satisfy the requirement petitioners allege is included in SRC 808.035(d)(2) to provide multiple design alternatives, with an explanation as to the infeasibility of each, in order to demonstrate that no reasonable design alternative exists....

Intervenor argues, and we agree, that nothing in the express language of SRC 808.035(d)(2) requires an applicant to propose multiple design alternatives to prove that no reasonable design alternative exists.

In a footnote, LUBA further adds: "Petitioners do not address or challenge the city council's interpretation of SRC 808.035(d)(2), quoted above."

Maybe appellants here are setting up such a challenge.

Members of the Glenn-Gibson Watershed Council have asked about design alternatives.

Again the question of design alternatives

They summarize: "Yet, no alternative proposals have been provided by the applicant or by staff. The assertion that the proposal in the application or as conditioned is the minimum remains an assertion, not evidence."

This discussion is under a different part of the SRC, but the general problem looks to be the same: What level of analysis is in fact a consideration of reasonable alternatives likely needs more definition if we truly want to hold developers to that.

Probably we need more specificity in statute and interpretation here also. There is a very great disconnect between what neighbors and the citizenry understand as analyzing reasonable design alternatives and what the lawyers and courts consider sufficient.

Finally, two places where the City should consider more thought generally.

Here, as at the Meyer Farm, development with more height would keep the same (or greater!) number of dwellings while making space also to retain more trees. A local architect points to this.

Proposing more height

The developer claims difficulties with this.

Difficulties with adding more height

If we are serious about more housing and serious about better tree preservation, we will need to think more seriously about height. This is going to come up again and again. For developers the City might consider some kind of task force or something to look very seriously at the barriers to height and at ways to eliminate or mitigate them. And for neighbors, at any future "town halls" or "open houses," the City might also consider focusing on trade-offs like this one: If we want more space for trees, we will need to tolerate more height, even in residential areas.

The template: 3 story walk-ups
on a sea of parking lot

Not mentioned in the appeal at Council, but related to the matter of height is the forthcoming broadening legalization of single access apartments. Currently one of the reasons big complexes are these masses of three-story walk-ups set on large parking lots is that current building codes call for hallways and additional staircases for larger groupings of apartments. This is a reason developers and designers employ the current template of the three-story walk-up.

Typical three-story walk-up configuration
(From City of Salem Middle Housing reform, 2019)

• See at Slate, "The Single-Staircase Radicals Have a Good Point."

Fortunately, the Legislature acted and has directed for an adjustment in state building standards. It may be a little ways off, but we can start thinking about it now.

Legislative Summary on HB 3395

via the former twitter

We need not just more flexibility for custom building, but we also just simply need new templates, like this design from a catalogue. (Maybe new action on "housing production strategies" will include more templates for off-the-shelf design solutions that also come with expedited land use and site plan approvals.)

Handsome! But not legal today - former twitter

And in a minor note about the speed bumps on Landaggard, the City talks around the problem of speed on Orchard Heights and Doaks Ferry. This is not a matter directly bearing on any approval or denial for the project at hand, but time and time again the City doesn't deal adequately or directly with speed (even lawful speed!) and speeding on collector and arterial streets. To go back to an earlier point, "safe and convenient" walking and rolling will imply slower auto traffic. The City's transportation framework separates them, but they are intimately connected. Speedy driving is a denial of safe and convenient walking and rolling.

Where do we really need traffic calming?

It'll be interesting to see how Council decides. It does not seem likely this project will be resolved this month by Council, however, and the final disposition seems certain to involve an appeal to LUBA or more.