HomeMy WebLinkAboutItem 27 Authorize Appeal of State Land Use Planning RulesAGENDA ITEM SUMMARY Meeting Date: 6/20/2022
Meeting Type: Regular Meeting
Staff Contact/Dept.: Kristina Kraaz, CAO
Staff Phone No: 541-744-4061
Estimated Time: 10 Minutes
SPRINGFIELD
Council Goals: Mandate
CITY COUNCIL
ITEM TITLE:
AUTHORIZE APPEAL OF STATE LAND USE PLANNING RULES
ACTION
Authorize the City Attorney to retain special legal counsel for the purpose of filing
REQUESTED:
an appeal of Oregon Administrative Rules expected to be adopted by the Land
Conservation and Development Commission (LCDC) at their meeting on July 21,
2022, amending OAR chapter 660, divisions 8, 12, and 44.
ISSUE
The City Attorney's Office seeks authorize to retain special counsel to assist the
STATEMENT:
City with appealing administrative rules governing housing, transportation, and
Regional Scenario Planning to the Oregon Court of Appeals. The City of
Springfield has been engaged in providing comments to LCDC on their proposed
changes to these rules; despite the City's significant efforts to provide detailed
comments regarding its concerns with the proposed rules, staff anticipates LCDC
will adopt permanent rules on July 21, 2022 that do not resolve these concerns.
ATTACHMENTS:
Attachment 1: Springfield's Comments to LCDC at the May 19, 2022 Hearing
DISCUSSION/
This rulemaking process, referred to as the "Climate Friendly and Equitable
FINANCIAL
Communities Rules," is a result of the Governor's Executive Order 20-04.
IMPACT:
Springfield staff have supported the overall objectives of the rulemaking in
principle, but have significant concerns with the content of the proposed rules: the
rules as drafted have a high level of prescriptive detail and do not offer the degree
of flexibility needed to ensure they work for Springfield. City staff have contributed
extensive to the rulemaking effort by participating on DLCD's Rulemaking
Advisory Committee since 2020. Springfield staff have also provided extensive
and detailed written comments explaining the city's concerns with the rules (see
Attachment 1).
On May 19, 2022, LCDC adopted temporary rules (available online here), for the
stated purpose of allowing more time for DLCD staff to address stakeholder
concerns with the rules. The adopted temporary rules do not address Springfield's
highest areas of concern, which are listed in the cover letter to Springfield's
comments to LCDC for the May 19, 2022 hearing (Attachment 1). DLCD staff
have stated an intent to make only "minor adjustments" before permanent rules are
adopted on July 21, but more than "minor adjustments" are needed to resolve
Springfield's concerns.
Springfield staff are collaborating with other affected jurisdictions and interest
groups to seek more significant changes to the rules through conversations with
DLCD staff and through other avenues. However, in the likely event that LCDC
adopts permanent rules on July 21 without addressing Springfield's significant
concerns, the City Attorney's Office seeks Council approval to retain special legal
counsel to assist with filing a legal challenge to these rules.
SPRINGFIELD
CITY OF SPRINGFIELD, OREGON
OY 225 FIFTH STREET
DEVELOPMENT AND PUBLIC WORKS OREGON SPRINGFIELD, OR 97477
PHONE: 541.726.3753
FAX: 541.736.1021
www.springfield-or.gov
May 17, 2022
Land Conservation and Development Commissioners,
City of Springfield wants to see progress on climate and equity. The rules before you today are not the
way to achieve the intentions of this rulemaking. Please address the remaining problems or provide
reasoning for not doing so before adopting the Climate Friendly and Equitable Communities rules.
IF you vote YES today, then you are voting yes to:
• Rules that have not met your duty in ORS 197.040(1)(b) for LCDC rulemaking
• Rules that deviate from the charge you established for this rulemaking
• Approving an unfunded mandate that sets up local jurisdictions to fail
• Requiring local jurisdictions to implement prescriptive regulations instead of spending staff
time and local resources on strategically achieving the desired climate and equity outcomes
• Requiring community engagement that is disingenuous, given pre -determined priorities
• Deferring planning for needed employment areas already inside of Springfield's UGB
• Adding costly regulatory barriers to mixed-use and commercial development without clear
nexus to meeting climate and equity goals
Unfortunately, the topics of our comments remain largely the same as the comment document we
submitted to you for the March 31, 2022 public hearing on the Climate Friendly and Equitable
Communities rules. While we appreciate the typos, missing words, and other errors of this nature that
have been cleaned up, the substantive issues mostly remain unresolved. We remain concerned that
these regulations have not been analyzed for the harm they may or will likely cause, including further
perpetuating discriminatory planning. When we removed our prior comments that related to items that
have been resolved, our 41 pages of comments from March were reduced to 30 pages. However,
seven of our areas of highest concern remain unresolved.
Springfield's Areas of Highest Concern
We have indicated our areas of highest concern in red text. These topics include:
• Adverse consequences of OAR 660-012-0060 (Plan and Land Use Regulation Amendments)
• Flawed nature of OAR 660-012-0115 (Funding Projections)
• Disingenuous community engagement given prescriptive, pre -determined "priorities" in OAR
660-012-0155 (Prioritization Framework) and similar other sections
• Feasibility of implementing OAR 660-012-0160 (Reducing Vehicle Miles Traveled)
• Legality of limiting projects on federally required regional transportation plan per OAR 660-012-
0180 (Financially -Constrained Project List)
Attachment 1, Page 1 of 52
• Commercial and mixed-use site development restrictions per OAR 660-012-0330 (Land Use
Requirements)
• Lack of legal authority for LCDC to take enforcement actions against cities for monitoring reports
in OAR 660-012-0920 (Compliance Hearings)
Areas of moderate concern are in orange text.
We have updated this document to:
1. Remove comments related to concerns that have been resolved.
2. Add additional comments in response to DLCD staff responses (see purple italic text).
3. Add a list of proposed rules that do not seem to directly support the climate and equity desired
outcomes of this rulemaking and add unnecessary implementation burdens and costs or are
overly prescriptive and detailed for state rules (see Attachment 1).
4. Add a visual map to illustrate how the rules have not been analyzed to evaluate what harm or
further discrimination may occur if these rules are adopted as proposed (see Attachment 2).
5. Add recent development examples in Springfield that would be prohibited by the rules (see
Attachment 3).
We want to see this rulemaking be successful by achieving its intended goal of increasing equity and
reducing greenhouse gas emissions. However, the current rules are not ready for adoption.
Please do not adopt the rules before the problems we have articulated are addressed.
Sincerely,
City of Springfield
Attachment 1, Page 2 of 52
City of Springfield Comments — May 5, 2022 Draft Climate Friendly and Equitable Communities Rules
OAR 660-012-0005 (Definitions)
General Clarity: Some of the proposed rule changes need additional cleanup for internal consistency.
Our recommendations for these edits are captured below.
Area of Moderate Concern
Expand "Committed transportation facilities" definition: This definition currently includes projects that
have approved funding for construction in a public facilities plan or the Six -Year highway or
Transportation Improvement Program (TIP). However, this does not currently include projects that have
preliminary engineering (PE) funded in a TIP nor does it include projects with funded and programmed
right-of-way or utility relocation phases. According to FHWA order #6, already adopted and funded
projects with a PE phase, but not a construction phase, could cause financial issues for jurisdictions that
must change course due to the updated rules. We recommend expanding this definition to include all
phases of a project that is programmed in a TIP to avoid triggering the FHWA order situation.
Recommendation:
Revise other rule definitions as follows:
• (13) "Committed transportation facilities" definition: Revise to read, "means that proposed
transportation facilities and improvements which are consistent with the acknowledged
comprehensive plan and have approved funding in a public facilities plan or
the Six -Year Highway or Transportation Improvement Program."
• (26) "Minor transportation improvements" definition references "an approved corridor." What
does this mean? Approved by whom? Please clarify.
The DLCD response to the first two recommendations for clarifying "Committed Transportation
Facilities" (now subsection (12)) and "Minor Transportation improvements" (now subsection (24))
states, "This is an existing definition that applies statewide that has not changed." It is unclear why
DLCD and LCDC would not want to take the opportunity to clarify issues in existing rules when
updating the TPR in adopting the CFEC rules. DLCD has promised that if the new CFEC rules are
adopted, it will be open to making changes later to correct or clarify rules as needed. This stated
promise is undermined by the unwillingness to do that in this rulemaking. Why would you not want to
fix this problem now?
• (45) "Separated or protected bicycle facilities" definition: Revise to read "means bicycle facilities
that are physically separated or protected from motorized traffic by WFFieFs that n,-,,VeRt
;Ptr, r,;,,., ;.,+„ the biGyGl„ faGil,+,,. Physical protection may include parked motor vehicles.
Separated or protected bicycle facilities may be unidirectional or two-way. SepaFated „r
assesses-te the stireet9; ighway," The proposed definition is too strict. "Prevent intrusion"
Attachment 1, Page 3 of 52
implies it is physically impossible for motorized traffic to enter the bicycle facilities. Motorized
traffic can intrude on a lot of physically separated facilities when not intended. We should be
able to use tools that significantly inhibit intrusion, rather than prevent it entirely, such as curbs
and flexible delineators and not have to install jersey barriers, cable barriers, or other more
significant separation that can physically redirect motorized vehicles in all places where this
applies. Removing the last sentence allows more flexibility and context sensitive design.
Regarding the recommended changes to "Separated or protected bicycle facilities," (now subsection
(43)), DLCD staff addressed only part of our concerns with this definition. "Prevent" intrusion has been
changed to "inhibit" intrusion, which is adequate to address the first part of our comment. However,
DLCD has not addressed the second part of the recommendation, to remove the last sentence for
added flexibility and context sensitive design.
OAR 660-012-0012 (Effective Dates and Transition Period)
Maintain Work Program Flexibility: Springfield requested additional clarification of the work program
flexibility in our comments dated March 15. The version of the draft rules published March 17 removed
some of the flexibility in the prior rules draft by removing the study of climate friendly areas from being
work program eligible. We request that element be added back into the work program flexibility to
allow the local governments to design an effective work program that will be successful within the
overall timeline. The rules already include requirements for the local governments to show early
progress in meeting rule requirements; this could include the CFA study or other work based on funding
availability and staff resources. Under the work program option, the local governments will need to
begin work on the CFA study early on, to stay on track for ultimate completion of the work program. It is
important to provide as much flexibility to the local governments as possible, to allow local governments
themselves to determine how to effectively and efficiently comply with the new rules within the overall
timeline of June 30, 2027.
Recommendation: Include subsection (11) in the items that are work program eligible in subsection (3).
The May 19 rules draft includes two timeline options, neither of which resolve the issues and previous
comments heard by the commission.
The option in 0012a is essentially the same as the March 31 version, but swapping the "alternative
dates" language instead of a "work program." There has been some clarification that the review of
the "alternative dates" is not intended to be a detailed or burdensome requirement, but the
requirement for a public hearing in front of LCDC remains in the rules —see 0012a(3)(g). If the
alternative dates are really intended to be a simple timeline that is based on the local government
needs to effectively manage resources and staffing within the overall timeline for CFEC rule
implementation, it is unclear what the purpose or value is found in a public hearing. Which aspects of
the alternative dates will the public be expected to respond?
A special, additional RAC meeting, asking for 2.5 hours more of the large committee's time was
requested and held on 4/11/2022. During this meeting, multiple RAC members voiced the desire to
remove the public hearing on the work program if the work program was just a simple timeline as
Attachment 1, Page 4 of 52
described by staff and Commissioners at the March meeting. It is unclear why this input from the RAC
was solicited given that the proposed option does not incorporate the input from the RAC.
Unfortunately, this is a common theme throughout the process.
In addition, we note that the requirement for one work program for a metropolitan region has been
removed from this rule, but the requirement remains under Division 44 for Eugene -Springfield and
Salem-Keizer. This is another example of staff providing "false flexibility" in the options provided.
Springfield is specifically concerned about approval of our division 12 alternative dates being tied in a
public hearing to Eugene's division 12 alternative dates; this is the outcome of the current rule
language in division 12 and 44, since division 44 only proposes one work program submittal for the
Central Lane region, which includes the division 12 alternative dates for all jurisdictions in the region.
The proposed alternative in 0012b is more flexible for local jurisdictions and we certainly appreciate
that flexibility. However, it also seems to ignore input from other community stakeholders that some
timeline or absolute end date for implementing CFEC rules is appropriate. We agree that an overall
deadline is appropriate, but we believe it should be more reasonable than the end date proposed in
0012a — particularly given the expansive and prescriptive nature of the rules -requirements as
currently written.
In proposing rule 0012b with virtually no deadlines for most of the CFEC planning work, DLCD staff are
presenting LCDC with a false dichotomy in choice — the overly restrictive and rushed timelines in 0012a
or virtually no timelines at all. We urge LCDC to take a middle path that provides enough time for
local governments to effectively implement the rules, while also ensuring that work will actually be
accomplished within a time frame that is meaningful to address climate change.
Recommendation: We request time to develop specific text recommendations to arrive at a solution
that would address numerous detailed concerns we have with this section. If the rules are revised to
take the level of detail down by one or two levels, and more funding is made available through
0130T/the state legislature, then these items will help inform what a reasonably quick
implementation would look like.
OAR 660-012-0060 (Plan and Land Use Regulation Amendments)
Area of High Concern
Changes to this section has adverse unintended consequences: Subsection (1)(c) includes added
language states "If a local government is evaluating performance based on projected levels of motor
vehicle traffic, then the results must be" based on projected conditions measured at the end of the
planning period in the TSP.
This appears to be a substantial change to the existing rule that was stated to be outside the scope of
the CFEC process. The current rule does not distinguish between performance based on motor vehicle
travel or other multimodal performance standards. Limiting to "motor vehicle traffic" implies that local
government must examine performance levels for other modes throughout the planning period, rather
than the end of the planning period. This would require more data and more in depth review, and does
Attachment 1, Page 5 of 52
not allow a jurisdiction to rely upon planned projects likely to be constructed before the end of the
planning period.
If result is to require multimodal performance standards to be met throughout planning period, rather
than at the plan horizon year, the change disincentivizes local gov'ts from adopting new multi -modal
performance standards. We recommend removing the added language to make clear that for all types
of infrastructure performance under -0060, the projected levels are measured at the end of the planning
period.
Recommendation:
Remove new proposed text from 660-012-0060(1)(c), keep rule as currently adopted: "(c) Result in any
of the effects listed in paragraphs (A) through (C) of this subsection based on projected conditions
measured at the end of the planning period identified in the adopted TSP."
No changes were made. The response from DLCD staff to this comment was to state: "This language
was added to rule 0060 as a wide range of performance standards are expected to be used than
previously assumed under the rule." This response does not make sense, given that this additional
language in (1)(c) references ONLY performance standards based on motor vehicle traffic. Without
language limiting (1)(c) to performance based on motor vehicles, (1)(c) would apply to all types of
performance standards including the expected new range of performance standards. We fail to see
any need for this new language in (1)(c) and are highly concerned about the consequence to TPR
analysis for plan amendments, code amendments, and zone changes, if this language is added to the
TPR.
It appears DLCD staff does not understand why the language "based on projected conditions
measured at the end of the planning period" was added to the TPR in the first place. This language
appears in the TPR because without it, the Oregon Court of Appeals ruled that "significant effects"
MUST be measured at all times throughout the planning period. See Jaqua v. City of Springfield, 193
Or. App. 573, 594, 91 P.3d 817, 828 (2004). The LCDC Rulemaking Notice dated January 3, 2005 for
prior TPR amendments (attached to this comment) states the explicit purpose behind adding this text
was to override the Jaqua case law:
Overall, the proposed amendments respond to the !aqua decision by making it clear that
decisions about whether a plan amendment significantly affects a planned transportation
facility are assessed at the end of the relevant planning period. This would change the
interpretation in the Jaqua case that concludes that a significant effect occurs if there is a
failure to meet performance standards at any point during the planning period. (See Section
0060(1)).
Now, DLCD proposes to add a limitation on this language so that it applies ONLY when performance
standards are based on motor vehicle traffic, and therefore NOT to multimodal or other modal
performance standards. This means that multimodal performance standards WOULD NOT be within
Attachment 1, Page 6 of 52
the scope of the language "based on projected conditions measured at the end of the planning
period." As stated by the Oregon Court of Appeals in the !aqua case, this will REQUIRE cities to
conduct significantly more detailed analysis under the TPR rule 0060 than the current rule provides.
This is specifically at odds with LCDC's direction to NOT make substantive changes to the existing rule
at 0060. We strongly urge you to read these comments carefully and remove the language that limits
"the end of the planning period" to performance standards based on motor vehicles only.
As currently proposed, the rules pose hurdles to development, including up zoning parcels to build
more housing. This problem remains even after meeting with DLCD staff on April 261 to discuss this
issue and clarify the problem.
OAR 660-012-0115 (Funding Projections)
Area of High Concern
Funding Projections are Flawed: The rules do not reflect transportation funding variability and inability
to project accurately. Transportation funding is incredibly variable and cannot be accurately projected in
the way that these rules require. For instance, the majority of City of Springfield's transportation capital
funding comes through federal and state competitive grant programs and from funding sources that
vary based on federal and state legislative action (e.g. recent federal Infrastructure Investment and Jobs
Act, federal RAISE grant for Franklin Blvd, state HB2017 funding for 42nd St, etc). Given this, the
projections are likely to be off. Based on this context, it is unrealistic and infeasible to require a list of
funding sources that must include for each source of funding "the expected amounts of funding for each
year over the remainder of the planning period" as per subsection (3)(a). This is currently written to be a
fool's errand.
Recommendation:
Significantly revise entire section to be more realistic.
We appreciate the change from specifying funding projections for every year to be one projection over
the planning period. Our overall comments have not been addressed: the flawed nature of funding
projections and the rules not accounting for the funding stream eligibility of different types of
transportation investments and grant programs.
OAR 660-012-0120 (Transportation System Planning Engagement)
Prescriptive Rule Requirements Prevent Compliance with this Rule: Springfield supports this rule in
section 0120 as written, but we are concerned that the "choices" referenced in section (3) are non-
existent under the prescriptive requirements in other sections of the rules (see discussion under OAR
660-012-0155 related to mandatory "priorities" and the limited utility of community engagement).
These rules are so prescriptive that we are not clear what choices community members who engage in
the process would even be able to provide input on or how that input can actually affect the City's
planning efforts.
Attachment 1, Page 7 of 52
Given the issues that remain with rule —0155 and the other engagement requirements noted in our
comments below, this concern remains unresolved.
OAR 660-012-0135 (Equity Analysis)
Focus on Land Use and Transportation: The rules should be clarified to set a reasonable expectations
about the scope of the cities' and counties' work under these rules. The wording in (2)(b) -(c) could be
interpreted to be broader than land use and transportation planning contexts. For example, unequal
access to public services and social services like policing policies, banking and lending policies,
healthcare policies, etc, are important areas that have been affected by racism, but would not be
addressed under this work. We do not want to create an expectation that this process can consider all
aspects of systemic oppression; that work will need to be pursued in other avenues.
Provide Resources to Local Entities for Equity Work: To do the equity engagement work described in this
rule successfully, it will require funding local staff to invest in ongoing relationships and communication
with community members of underserved populations.
Recommendation:
Revise (2)(b) and (c) to clarify scope as follows:
"(b) Assess, document, acknowledge, and address where past land use and transportation
planning policies and effects of climate change have harmed and are likely to perpetuate harm to
underserved populations;
(c) Assess, document, acknowledge, and address where current and past racism in land use and
transportation planning has harmed and continues to harm underserved populations;"
The May 19 hearing version includes the requirement to address where past "land use, transportation
and housing policies" have harmed or are likely to perpetuate harm. "Housing policies" is very broad
and may include non-public policies outside the City's control, as indicated in our initial comment, such
as banking and lending policies. Please revise further to state "housing public policies" to clarify
extent to which local governments have control over housing policies.
OAR 660-012-0145 (Transportation Options Planning)
Commute Trip Focus is Inequitable: This section of the rules focuses heavily on commute trips, not all
trips. Focusing programming investments this way could disproportionately benefit people who have
jobs and take away the transportation options program benefits from people who are not employed or
do not commute. Additionally, there are opportunities to shift non -commute drive alone trips that could
help reduce transportation related greenhouse gas emissions. While trip reduction strategies for large
employers and commute trip consultation could be helpful, this planning should be broader and lead
with equity and climate lenses.
Undefined Terms: 660-012-0145(3)(a) references requirement to coordinate with other entities to
identify future demand management needs and references "Commute Trip Reduction consultation"
Attachment 1, Page 8 of 52
(capitalization in original) and "parking cash -out," but these terms are not defined, and it isn't clear what
they mean. "Commute Trip Reduction consultation" as a proper noun appears to be a reference to a
Washington State program required under Washington law; it isn't clear what the analogous program is
in Oregon.
Clarify Coordination: The language used in subsection (2) to describe the entities with whom cities and
counties are required to coordinate is broad and unclear about which other counties and cities must be
included in the coordination. Similar language in OAR 660-012-0150 is clearer that the "other cities and
counties" include those that are transportation option providers and transportation service providers."
Recommendation:
Recommend broadening the Transportation Options Planning to include all trip types and lead with
equity and climate values, not just commute trips.
The DLCD staff response states, "[Subsections] (1) and (2) include references to programs for trips
other than commute." However, the only references to programs for trips other commute trips are for
existing programs in (2). All references to Transportation Options Planning for future programs are
oriented around commute trips only, or regional solutions for intercity travel. The rule does not
include any reference to future transportation planning options to serve the needs of underserved
populations.
Add definitions for "Commute Trip Reduction consultation" and "parking cash out" as those terms are
used in (3)(a).
DLCD staff's response states: "These rules were written to build on DEQ employer rules and ODOT
Commute Trip Reduction program." However, there is no cross reference in this section to any DEQ
employer rules or ODOT rules that would help define the terms "commute trip reduction consultation"
and "parking cash out." The connection to other agency's requirements is unclear. "Commute trip
reduction" is used in the DEQ rules applicable only to the Portland area at Chapter 340, division 242,
but those rules do not include any reference to "consultations," or "parking cash out," and are not
applicable outside the Portland area. If amendments to these DEQ rules are being proposed to make
them applicable outside Portland in response to Executive Order 20-04, there is no easy way to find
public information about such changes.
Revise (2) as follows: "Cities and counties shall coordinate with transportation options providers and
public transportation service providers, including but not limited to state agencies, other cities and
counties, and public transportation system operators, to identify existing transportation options and
transportation demand management programs, services, and projects.
The DLCD staff response also states, "This rule has been written with cooperation from ODOT." This is
a common staff response to our comments and questions on the transportation rules. Since our
comments do not have to do with concerns that ODOT wasn't consulted or that the rules wouldn't
work for ODOT, this comment seems unresponsive to our comments. We request that DLCD staff
Attachment 1, Page 9 of 52
consult with ODOT on the public comments about rules that ODOT apparently helped write, so that a
complete response can be provided. Through meeting with staff, we understand that this consultation
with ODOT could not occur yet due to the urgent adoption schedule and staff availability.
OAR 660-012-0150 (Transportation System Inventories)
Define Transportation Facility or Service: The definition for "transportation facilities" plus the addition of
"and services" in (2) is incredibly broad and could lead to more work than intended (see definitions
copied from OAR 660-012-0005 below). For instance, this could currently include privately run transit,
shuttle services, non -emergency medical transports, ridesharing programs, delivery services (UPS,
couriers, food delivery), bike racks, bike fix -it stations, benches, wayfinding signs, and more. Is this
intended to simply conduct inventories and collect data without a clear purpose for most of the data? To
use public dollars efficiently, this should be more narrowly focused and tie to the specific intent of this
rulemaking.
• 0005(48) "Transportation Facilities" means any physical facility that moves or assist in the
movement of people or goods including facilities identified in OAR 660-012-0020 but excluding
electricity, sewage, and water systems.
• 0005(55) "Transportation Service" means a service for moving people and goods, such as
intercity bus service and passenger rail service.
The rules for each transportation mode in require a complete inventory and gap analysis independently
of this section 0150, so it is unclear what additional purpose this section serves. For reference, the City
is specifically required to inventory pedestrian facilities as provided in OAR 660-012-0505, bicycle
facilities as provided in OAR 660-012-0605; public transportation facilities as provided in OAR 660-012-
0705, and streets and highways as provided in OAR 660-012-0805.
Recommendation:
Clearly define and narrow the scope of the required inventory to only that which is required to achieve
equity and climate goals. Remove (2) or specify what gaps this is filling that is not covered by the
inventory and gap analysis in rules OAR 660-012-0505, 0605, 0705, and 0805
The DLCD staff response states, "This rule provides overall direction on inventories required in other
rules, as referenced in section (1). Some clarifications have been made." It appears that (1), (2), and
(3) are unnecessary because they are duplicated in the other specific inventory rules (0505, 0605, 0705,
and 0805) or are inconsistent with those other specific rules. For instance, (3) requires "Inventories
shall include all publicly owned, operated, or supported transportation facilities and services within
the planning area," despite the specific inventory and gap analysis rules in OAR 660-012-0505, 0605,
0705, and 0805 specifying a subset of the transportation facilities and services to be inventoried (e.g.
none of the specific rules require inventory of "all"facilities and services, publicly owned, operated, or
supported or otherwise, but rather specific subsets of those transportation facilities and services).
Attachment 1, Page 10 of 52 10
In addition, the requirement in (2) to "coordinate with other transportation facility and service
providers" continues to be an exceptionally broad statement. Clarification was made to (3) to state
that only "publicly owned, operated, or supported transportation facilities and services within the
planning area" need to be inventories. However, this clarification was not captured in the
coordination requirement in (2).
We continue to recommend that changes proposed in our March hearing comments above.
OAR 660-012-0155 (Prioritization Framework)
Area of High Concern
Prioritization Framework: The "prioritization framework" at 660-012-0155 is highly confusing as to what
the City is supposed to "prioritize" vs. "consider" in prioritizing. Subsection (1) references the framework
that Cities must "consider" to "make decisions about prioritization of transportation facilities and
services," and lists "factors" in subsections (2) through (5). Subsections (3), (4) and (5) state items that
the City must "consider" during prioritizations. However, subsection (2) and (4) contain terms that state
the City "must prioritize" specific items. It is unclear how these factors in (2) through (5) are intended to
interrelate, if the City is required to only "consider" some factors but "must prioritize" others. For
instance, subsection (2) states that "transportation facilities and services supporting each of these
factors [in (A) through (D)] must be prioritized." Subsection (4) and (5) contain additional items that the
City "must prioritize" related to CFAs and areas near schools. It is not clear how the City is supposed to
"consider" some factors listed for consideration in section 0155, if regardless of those factors, the City is
bound to "prioritize" the subfactors under (2) and specific items in (4) and (5).
If the "prioritize" subfactors are intended to be weighted heavier than the "consider" subfactors in this
rule, we question how to meaningfully capture input from underserved populations that may reflect
different priorities than those captured in the rule. We support identifying all factors that are to be
considered, but within those factors, the cities and counties should be given substantial leeway to
develop higher and lower priority factors based on the results of the mandatory community
engagement. Otherwise, we are highly concerned that we will be required to "engage"
underrepresented groups to develop priorities, only to have to inform them that their opinions cannot
influence the outcomes because the rules already mandate certain factors be given more priority.
Area of High Concern
Prioritization of the TSP Prosect Lists: There are confusing inconsistencies and cross-references in OAR
660-012-0155, 0170, 0180, 0520, 0620, 0720 and 0820 that make it unclear how the prioritization
factors in 0155 should apply to the development of the various project lists in the TSP. The confusion
arises because each of the rules listed above, in addition to section 0155, lists its own set of
prioritization requirements, many of which duplicate some but not all of the prioritization factors in
0155.
OAR 660-012-0155 states that it applies to prioritizations of transportation facilities and services in
division 12, which includes prioritization of the Unconstrained Project List in 660-012-0170 and the
Constrained Project List in 660-012-0180. Section 0170 states that the city must use the framework in
Attachment 1, Page 11 of 52 11
section 0155, but Section 0180 does not specifically reference 0155. This leads to further confusion
about whether 0155 does actually govern all prioritizations under the TPR, or only those sections where
0155 is specifically referenced?
Language in 660-012-0155
Language in 660-012-0170
Language in 660-012-0180
(2) Cities, counties, Metro,
(4) Cities and counties
(3) Cities and counties shall take
and state agencies shall use
shall develop a method of
the top available projects on the
the following factors to
prioritizing projects on the
prioritized unconstrained
prioritize transportation
unconstrained project list
project list, using the
facilities and services.
consistent with the
planning -level cost estimates
Transportation facilities and
prioritization factors in
developed as provided in OAR
services supporting each of
OAR 660-012-0155... Cities
660-012-0170, up to 125
these factors must be
and counties must meet
percent of the funding
prioritized.
the following
available. Using this list, cities
requirements when
and counties shall
developing a method of
prioritizing protects on the
unconstrained project list
(a) Meeting greenhouse gas
(a) The project will help
(a) Review the list of projects to
reduction targets,
reduce vehicle miles
determine if the city or county
including:¶
traveled;
may reasonably demonstrate
(A) Reducing per -capita
that the list of projects would
vehicle miles traveled to
result in a reduction of per
meet greenhouse gas
capita vehicle miles traveled, as
reduction targets as
provided in OAR 660-012-0160,
provided in OAR 660-
and be on track to meet the
044-0020 and 660-044-
targets in OAR 660-044-0020 or
0025;
OAR 660-044-0025;
(D) Meeting
(c) The project will help
(c) Review the list of projects
performance targets as
achieve the performance
against the targets set for each
targets as provided in
provided in OAR 660-
performance measure as
012-0910.
OAR 660-012-0910;
provided in OAR 660-012-0910
or OAR 660-044-0110 to
determine if the list results in
progress toward meeting the
targets
(b) Improving equitable
(b) The project burdens
(b) Review the list of projects to
outcomes for underserved
underserved populations
ensure that it would result in
burdens on underserved
populations identified as
less than and benefit as
provided in OAR 660-012-
much as the city or
populations less than and
0125;
county population as a
benefit as much as the city or
whole,
county population as a whole
to determine if the outcomes
of the project list are equitable;
and
Attachment 1, Page 12 of 52 12
It is unclear why certain factors/requirements are captured twice: Must the City give "super priority" to
the factors appearing in both 0155(2) and 0170(4) when developing the unconstrainted project list? Or,
does it mean the factors from 0155 that are not listed in 0170(4) are not relevant to the unconstrained
project list? And, if the latter, how is that result consistent the first sentence in section 0170(4) that
states the prioritization factors in section 0155 are applicable?
In addition to these concerns with sections 0170 and 0180, we are concerned about the prioritization
requirements in for the individual transportation modes in OAR 660-012-0520 (pedestrian system
projects), OAR 660-012-0620 (bicycle system projects), OAR 660-012-0620 (public transportation system
projects) and OAR 660-12-0820 (street and highway system projects).
Each of these rules include a requirement to develop project prioritization factors (presumably under
OAR 660-012-0155) by engaging underserved populations. However, each of these rules also includes a
list of factors that "cities must use... to prioritize the following factors above other factors." The rules
essentially pre -determine the city's priorities by rule, which is so prescriptive that it leaves little to no
room to account for the community engagement related to the prioritization of these projects.
Springfield supports the values of community engagement that are proposed in these rules generally,
but we are very concerned that there are no meaningful alternatives to offer the community during this
engagement when the rules mandate the "priorities" that must be selected for each mode of
transportation in rules 0520, 0620, 0720 and 0820. Why invite and invest in community engagement if it
is merely to inform people of the required priorities under the rules, and tell them that their opinions
cannot influence the outcomes? This process would be disingenuous at best; at worst, we are
concerned that it will create new distrust of our city planning process and make it even more difficult to
engage underserved populations in planning processes in the future.
Expected Primary Users: It is unclear who are the "expected primary users" that cities must consider
under (1)(d) and (5). For example, (5)(b) states we must consider the needs of freight users, and
references requires for safe access for workers. It isn't clear which of these types of users are the
"expected primary users." Is it up to the local jurisdiction to determine?
Recommendation:
Revise section 0155 to use consistent wording that all factors must be "considered," to allow cities
and counties the flexibility to determine which factors should have more or less weight, depending on
the input received in the community engagement process.
OAR 660-012-0155 should include all applicable standards for the prioritization framework under
Chapter 660, division 12. We urge removal of the duplicative and/or conflicting prioritization
requirements in the following rules:
• Unconstrained project list, OAR 660 -012 -0170(2)(a) -(b),
• Financially constrained project list, OAR 660-012-0180(3) and (5)
Attachment 1, Page 13 of 52 13
• Pedestrian system projects, OAR 660-012-0520(2)
• Bicycle system projects, OAR 660-012-0620(3)
• Public transportation system projects, OAR 660-012-0720(4)
• Street and highway system projects, OAR 660-012-0820(3)
Lastly, please clarify what "expected primary users" means in the context of the requirements in (5)(b).
DLCD's staff response to this comment states:
"These rules were developed in close coordination with ODOT. The draft rules provide
flexibility for local governments to weight different factors depending on community
values, and in coordination with underserved populations. Will consider some clarifying
revisions but agency coordination on this point may be challenging. Rule 0155 is
intended to provide a framework that is referred to in other parts of the rules, in
combination with specific requirements in those parts of the rules."
The May 19 rules includes one change to 0155 that adds that local governments "may use local values
determined through engagement ... to weight various prioritized factors when making prioritization
decisions as provided in this division." However, no substantive changes have been made to the
detailed rules in 0170 and 0180 that state specific factors that must be "emphasized" or "prioritized"
in adopting the TSP lists specifically. The framework in 0155 may allow weighting based on local
priorities, but the specific rules for developing the TSP projects lists undermine that ability to consider
local values/input by mandating the factors that must be given the most weight regardless of
community priorities or values. This leads to the situation that is highly concerning to Springfield: the
rules appear to allow engagement with underrepresented groups, but when it comes time to apply
that input specifically to develop elements of the TSP, there is no flexibility in how to weigh or
prioritize that input on specific elements of the TSP. This leads to engagement for the sake of checking
the engagement box, not for the purpose of meaningfully influencing the final decisions. The fact that
DLCD staff find it difficult to coordinate with ODOT staff should not be a reason for the Commission to
adopt poorly drafted rules that undermine the equity goals of this rulemaking.
Recommendation: Allow time for DLCD staff to engage with ODOT staff on the issues with the
engagement rules and framework in 0155, 0170, 0180, etc., and do not adopt rules until these
identified issues are resolved.
OAR 660-012-0160 (Reducing Vehicle Miles Traveled)
Area of High Concern
Technical and Resource Constraints in Modeling VMT: The Department has not provided information to
show that the new VMT rules at 660-012-0160 can be implemented by cities and counties in the
timelines required, if at all, based on tools within the cities' and counties' control.
Developing VMT projections using the factors listed in (3)(a) through (d) will require development of
new, complex VMT forecast methodologies by professional transportation engineering consultants.
Attachment 1, Page 14 of 52 14
These models are highly context -specific and will depend on the unique factors and land use
assumptions to forecast VMT at a local level. Cities and counties generally do not have the staff
resources or expertise to do this complex work in-house. Cities and counties will need significant funding
from the Department to contract with these experts to develop new VMT methodologies. However,
even if funding is made available, it is not clear that there are adequate professional resources (e.g.
transportation planning engineers and engineering firms) available to cities and counties to meet rules'
timelines.
The process under (2)(a) appears to be iterative and it is unclear how many model runs are expected
during a TSP planning process. If the financially constrained project list needs iterative refinement
throughout the planning process, does this then require numerous model runs?
Model Sensitivity Issues: These models are typically not sensitive enough to capture lots of small
changes over time, such as build out of missing pedestrian facilities. The model used in the Eugene -
Springfield area is well calibrated to produce VMT for regionally significant projects. There are inherent
sensitivity issues in regard to localized projects because most are likely not coded into the model.
Limited City Authority and Role to Influence VMT Reduction: Cities and counties only have authority and
the ability to influence certain aspects of vehicle miles traveled in their area. We question the feasibility
of subsection (4) only allowing cities, counties, and Metro to adopt a TSP if the project VMT/capita at
the horizon year using the financially constrained project list is lower than estimated VMT/capita in the
base year. If there is so much inertia in the existing, built transportation system and limited funds to be
able to finance a constrained project list to have a significant impact on VMT/capita reduction in the
next two decades, how does this play out? What if this is impossible? What are jurisdictions expected to
do in that situation? Would a jurisdiction forever be prevented from adopting another TSP while also
failing to adopt an updated TSP per other sections on this rule?
Recommendation:
Provide resources necessary to complete the level of and number of model runs that are needed to
implement this rule.
Removal of the requirement to model the unconstrained project list is one step in the right direction,
but it is still unclear how many runs may be required in total. It seems as if modeling the financially
constrained list will require an iterative process. If changes need to be made to the lists after the first
model run, this will lead to needing additional model runs.
Provide an explanation of what to do or an exception for situations in which it is impossible to achieve
660-012-0180(4).
DLCD's response was "Considered, funding and guidance forthcoming to support implementation." We
believe implementation feasibility issues should be addressed prior to adoption.
Attachment 1, Page 15 of 52 15
We support City of Portland's recommendation to revise (5) as follows, "Cities and counties may only
adopt a transportation system plan if the projected vehicle miles traveled per capita at the horizon
year using the financially -constrained project list meets the adopted performance targets under OAR
660-012-0910 and OAR 660-044-0020 and —0025 consistent with the Methods for Estimating
Greenhouse Gas Emissions and Emissions Reductions in OAR 660-044-0030 ir. ►e..,er than estimated
■.e►itraveled per capitn in the ►mance year scenario
DLCD staff response to Portland states, "Considered but did not make this change. Rule states that
projections of project list must be consistent with performance targets in 0910." We are unclear why
DLCD dismissed this recommended solution. We support this recommended solution because it
recognizes that the financially constrained project list is an important part of meeting the greenhouse
gas reduction targets, but not the only way this can be accomplished. This solution would provide
more flexibility to local governments in developing and adopting TSP project lists, while also holding
local governments accountable to the overall climate goals of this rulemaking. This is an example of
how the state can and should establish the desired outcome while allowing local flexibility to decide
the best path to get to the outcome.
OAR 660-012-0170 (Unconstrained Project List)
Area of Moderate Concern
Eliminating the Ability to Plan for Development in Existing UGB Expansion Areas: We are concerned that
the requirements in subsection (4)(a) -(d) would prevent cities from planning to serve all areas already
within the urban growth boundary. While we agree that the TSP project list — as a whole — should help
meet performance targets, we disagree that every individual project should be required to meet
subsections (4)(a) -(d). On an individual project basis, this precludes cities from including important
projects that provide access to development in greenfield areas within an existing UGB (e.g. serving
North Gateway in Springfield), or safety projects that could save lives and reduce serious injuries but
may not reduce VMT as a single project.
Applying subsections (4)(a) -(d) to each individual project undermines the city's compliance with Goals 9,
10, and 14. Goals 9 and 10 require the city to plan for adequate buildable lands for employment and
residential needs, respectively, while Goal 14 requires us to develop plans for the provision of urban
facilities and services to urbanizable areas within the urban growth boundary. In Springfield, the
urbanizable areas includes a significant portion of the undeveloped buildable land in the Goal 9 and Goal
10 inventories. Therefore, to plan for adequate residential and employment lands, we must be able to
adopt plans for streets to serve these areas (in addition to planning for other modes of transportation).
Subsection (4)(a) -(d) may significantly preclude development in these planned urbanizable areas, since
extending the City street network into undeveloped areas may result, on an individual project basis, in
an increase in VMT per capita. The City should have the option to balance these types of projects with
other projects, including in other locations within the urban growth boundary, that reduce VMT per
capita.
Recommendation:
Attachment 1, Page 16 of 52 16
Remove (4)(a) and (4)(c) to allow for projects that are needed to serve greenfield areas in existing
UGBs and to enable safety projects that do not reduce VMT to be adopted into transportation system
plans.
DLCD staff response stated, "Local governments have flexibility in adding additional factors and
determining weighting of factors. "However, we disagree on how much flexibility there is to weight
different factors. The rules at 0170(4)(a) and (4)(c) now require we "emphasize" these factors,
implying that these factors be emphasized above any other factor. Thus, we may have flexibility to
consider additional factors earlier in the process, but once final decisions are made to arrive at the TSP
project list, there is no flexibility as to which factors must be given the most weight. See our
comments in reply to DLCD-s staff response above at rule section 0155.
We are highly concerned that the lack of flexibility in developing the TSP project lists will prevent
Springfield from moving forward with planning our recent UGB expansion area for large, needed
employment sites in North Gateway and in the South Mill Race area (pictured below). These are areas
LCDC determined were necessary to meet Springfield's Goal 9 requirements for our planning period
through 2030. The City and DLCD have invested resources to further this planning effort so that
development can occur within the planning period, and we are concerned that these will be wasted
funds if the TPR changes prevent us from completing this work. Specifically, DLCD has provided an
$80,000 technical assistance grant to the City to conduct the Goal 5 planning in these areas that is a
key step needed to make it developable in the planning period that ends in 2030. That grant funded
work is expected to be completed in 2023.
kl�' -,
MILL RACE
Employment area: 135.Oac
NORTH GATEWAY Unconstrained: 125.Oac
Total area 508 lac
Total area, 212 4a ,� _
L
Unconstrained: 132.1acri
� 1
OAR 660-012-0180 (Financially -Constrained Project List)
Area of High Concern
Limiting projects in the RTP to the local TSP financially -constrained list is Ultra Vires: The proposed rule
in subsection (2)(a) is ultra vires (outside the scope of LCDC's rulemaking authority) and should be
removed or revised. That section prohibits cities and counties from placing projects on the financially
constrained list of a federally required regional transportation system plan if the project is not on the
Attachment 1, Page 17 of 52 17
city or county's financially constrained project list in the TSP. Within an area covered by an MPO, the
MPO has the legal authority under federal law (23 C.F.R. § 450.326) to develop the local Transportation
Improvement Plan that contains the financially constrained project list for federal purposes. Subsection
(2) effectively constrains an MPO's authority to include projects on that list, in contradiction of federal
regulations which provide that authority to the MPO.
Additionally, the Oregon legislature has not given DLCD or LCDC authority to directly control the actions
or decisions of an MPO, as subsection (2) does, even if federal law allowed it. LCDC has authority under
ORS 197.040(d) related to cooperation with "the appropriate agencies of the United States, this state
and its political subdivisions, any other state, any interstate agency, any person or groups of persons
with respect to land conservation and development." Additionally, related to climate change, DLCD may
"shall establish guidelines for developing and evaluating alternative land use and transportation
scenarios that may reduce greenhouse gas emissions" under ORS 184.893(1). Neither of these
provisions allow LCDC or DLCD to place mandatory obligations on an MPO related to transportation
scenarios or transportation projects.
Support (2)(b): We appreciate the amendments to allow for jurisdictions to permit projects on the
unconstrained project list to move forward when the project is related to development.
Unpredictable Financial Landscape: Allowing up to 125% of the funding available in (3) does not
acknowledge the drastically changing financial realities of transportation funding. Given that most of our
transportation projects are funded through federal and state grants, it is impossible to predict with very
much accuracy over a 20 -year time horizon how much a given jurisdiction can expect to have available in
transportation funding to implement TSP projects. We recently received $19M in federal RAISE grant
program funds in partnership with the City of Eugene. However, with such competitive grant programs,
we may or may not see such levels of funding again in the next couple of decades. Additionally, inflation,
work availability, material procurement, and other factors have significant impacts on project costs. Just
this month the City of Springfield received a bid from a contractor to build a construction project that
was 300% higher than the estimated cost. When these types of variations in prices due to inflation and
other factors are extrapolated to an entire TSP project list, 125% of funding available is too narrow of a
constraint.
Modeling Requirements for Minor Changes to TSP: Does (5) require us to re -do model runs every time
we make even a small change to the TSP? For instance, to add a policy to the TSP, would the entire
financially -constrained project list need to be updated and model runs be done again?
Recommendation:
Remove subsection (2). If necessary, it could be replaced with a requirement that cities and counties
coordinate in developing federal financially constrained project lists based on the local TSP financially
constrained list.
Issue remains unaddressed. Staff have yet to point to any legislative authority that DLCD or LCDC has
to directly control actions or decisions of a federally established MPO. The language effectively
controls the MPO actions by limiting any funding or construction of projects not on the financially -
Attachment 1, Page 18 of 52 18
constrained list, even if the MPO adopts the project. While MPOs are required to coordinate with
state planning departments under the federal law cited in DLCD staff's responses, it is not clear this
allows LCDC to subject MPOs to a prohibition on constructing a project that is adopted into the plan
(via the unconstrained list) but not on the financially constrained list. If this broader authority issue
remains unaddressed, we support City of Medford's recommendation to provide an exception to allow
projects to be included in the RTP list if the project supports progress towards the performance
measures or targets in the TSP.
Increase the flexibility of the financially -constrained project list to account for the funding variability
realities that jurisdictions experience.
DLCD staff response states, "The requirement to develop a financially constrained list in the local TSP
is a key part of the rules. Local governments have wide flexibility under the rules in 0115 to identify
potential funding sources." While we acknowledge this has been a key part of the rulemaking, it
remains flawed. The rules fail to account for the funding stream eligibility of different types of
transportation grant programs and investments (i.e. Federal Transit Administration FTA grants can
only fund certain types of projects). Receiving or not receiving a $100M FTA grant that only has certain
eligibility criteria that may or may not align with the prioritization factors required by these rules is
outside of the City's control to decide.
Remove (5) or revise to allow more flexibility for small changes to TSP without requiring resource
intensive modeling.
DLCD staff responded that "Rule 0160 requires modeling of the constrained project list only for major
updates to the TSP." This response does not make sense given the requirements in 0160(4) that no TSP
can be adopted if the financially -constrained project list increases VMT, and the scope of minor
amendments in —0100 includes updates to TSP core elements (and the financially -constrained project
list is defined as a core element). Any change to the TSP where the City wants to be able to actually
build the project will require amendment to the financially constrained list, which then appears to
require iterative modeling of the entire list again (and also potentially reprioritizing the underlying
constrained project list).
OAR 660-012-0190 (Transportation System Refinement Plans)
Ensure Refinement Plan Does Not Trigger TSP Update: it is unclear whether or not refinement plan
adoption would trigger a TSP update and all of the associated requirements.
Federal EIS Coordination: Subsection (2) is redundant to the Project Development rule in OAR 660-012-
0050, which is not proposed to be amended in this rulemaking. Section 0050(1) and (4) states the
requirements related to preparation of an EIS, with (4) specifically stating that preparation of an EIS may
be concurrent with refinement plan adoption. This redundant section should be removed to avoid
confusion with the Project Development rule at OAR 660-012-0050.
Recommendation:
Attachment 1, Page 19 of 52 19
Add clarification to this section that a refinement plan can be adopted without triggering a TSP update,
either major or minor.
In response to this issue specifically, DLCD staff stated, "Adoption of a refinement plan is an
amendment to the TSP." While we understand that adoption of a refinement plan is an amendment
of the TSP, it remains unclear whether adoption of that amendment triggers the major amendment
requirements or is considered another type of amendment (minor). In other words, it is not clear what
level of updates to the remainder of the TSP must be made when a refinement is adopted.
For example, OAR 660-012-0160(4) states that no TSP can be adopted if the financially constrained
project list increases VMT; per OAR 660-012-0180(2) the City can only develop, fund, and construct
projects on the financially constrained list. This means that refinement plan projects must be on the
financially constrained project list if the City wishes to actually build what is adopted in the refinement
plan. In turn, that would require new modeling of the financially constrained project list and probably
also re -prioritization of the unconstrained project list in order to arrive at new list that includes the
refinement plan project(s). This combination of requirements results in significant increase in work
needed to adopt a refinement plan, and likely renders refinement planning infeasible. This could
prevent the planning and implementation of corridor projects that need to improve safety in order to
save lives and reduce serious injuries.
Recommendation: Clarify in 0160(4) and 0190 that refinement plan projects do not need to be
included in the financially constrained project list in 0180. Also, remove the limitation on developing,
funding, and constructing projects not on the financially constrained project list in 0180(2), which
exceeds LCDC's lawful authority anyway.
Remove (2) related to preparation of federal environmental impact statements.
DLCD response states, "Section (2) is borrowed from existing rule language." Given this, we still do not
understand why DLCD would not want to take this opportunity to clean this up?
OAR 660-012-0215 (Transportation Performance Standards)
Vague - Need Guidance and Implementation Support: Please ensure that there is clear guidance and/or
appropriate tools and training provided for how to implement the requirements and provide sufficient
state funding to support practitioners in developing and deploying those tools to fulfill these
Performance Standards requirements. For instance, does a multimodal level of service (MMLOS)
methodology fulfill the "Accessibility' objective or not? Examples of how to successfully implement this
section of the rule would be very helpful.
Concern about Varied Application: Given how broad (6) is, this will lead to different application of
different performance measures that meet different objectives in different jurisdictions across the state
or even within a given metropolitan area.
Attachment 1, Page 20 of 52 20
Unclear: (6) states that "At least one of the performance standards must support increasing
transportation choices and avoiding principal reliance on the automobile." Which of the objectives does
DLCD consider fulfilling this?
Recommendation:
Remove "At least one of the performance standards must support increasing transportation choices and
avoiding principal reliance on the automobile" from (6) or clarify which of the objectives would fulfill
that requirement.
DLCD staff responded, "This rule has been written with cooperation from ODOT. The rule provides
broad flexibility to local governments to consider a range of standards meeting a range of objectives.
A standard like MMLOS could reasonably be considered to meet multiple objectives. The state
understands additional tools will need to be developed." It is not clear why the "multiple objectives" it
would meet have not been specified nor why the recommendation to remove the vague language has
been dismissed.
No answers have been provided in response to our concerns about the varied application.
We appreciate that DLCD and/or ODOT will provide more guidance and support on this section.
OAR 660-012-0310 (Climate Friendly Areas)
Option to Designate CFAs Outside present City Limits: Springfield supports the language section (1)(e),
which allows cities to designate CFAs outside city limits but inside the UGB if the area is contiguous to
city limits; readily serviceable with urban water, sewer, stormwater, and transportation services; and
will be zoned as a CFA upon annexation. However, the City recommends removal of the requirement in
subsection (1)(d)(E) that the City demonstrate that "at least 90% of recent annexation applications have
been approved within one year of the date of annexation application." In discussion with DLCD staff,
our understanding is that the goal of the new language in (1)(e) is to ensure that cities do not
designating CFAs in locations that could be years away from serviceability. While Springfield would meet
the requirement in (1)(d)(E), it is not clear how the City's history of annexation decisions for other
properties is relevant to the serviceability of a proposed CFA area. This factor creates more work for the
City to document the approval rate of annexation applications over time, without being reasonably
related to the goal of ensuring that CFAs are serviceable in the near term.
Dimensional Requirements for CFAs: Springfield appreciates the reduction in the minimum dimensional
requirement for CFAs in (1)(f) from 1,000 ft in the January 2022 draft rules, down to 750 ft. We request
you consider reducing this further to 500 ft, and/or using minimum area as a standard instead. For
example: 25 acres for primary CFAs (already included in the rules) and 12 acres for secondary CFAs
(approximately the same as an area that is 750 ft by 750 ft). Allowing a secondary CFA to meet a general
area standard such as 12 -acre minimum, instead of minimum dimensions, provides more flexibility for
cities to designate CFAs in areas that make sense.
Attachment 1, Page 21 of 52 21
In discussions with City staff, DLCD staff justified the minimum dimensional requirement as preventing
CFAs from being drawn in a way that concentrates high density only around major urban roads and
freeways where air -pollution may contribute to greater health impacts. 1 In a study cited in DLCD staff's
explanation, higher mortality rates were found among people who live within 50 meters (164 ft) of a
"major urban road" and 100 meters (328 ft) of a "highway" in Ontario, Canada.
Where CFAs do not border on, or contain, very high traffic streets like freeways and major arterials, it is
not clear what purpose is served by the minimum dimensional requirement of 750 ft. The 750 ft
requirement may artificially constrain cities from including areas that make sense to include in a CFA
based on current patterns of development and existing right of way, etc., but that do not meet the 750
ft minimum at those points. If there is a concern that CFAs should be wider around high traffic streets,
then the minimum dimensions should be limited to that circumstance. For example, (1)(f) could be
narrowed to state, "Climate friendly areas that include or abut a freeway or major arterial must have a
minimum width of 500 feet..." This would meet the goal of allowing more development away from
higher air pollution areas, while still allowing flexibility for cities to designate CFAs in a logical way.
Recommendation:
Delete (1)(d)(E) regarding 90% annexation requirement.
DLCD staff changed 90% to 70% in (1)(d)(E) -- now (1)(e)(E) -- but this still misses the point that this is a
wasteful and unnecessary regulation that requires staff work that does not directly support the
climate and equity goals. The staff response stated: "To facilitate development in CFAs, these areas
must be readily urbanizable. Consequently, a streamlined annexation process is warranted."
However, there is no logical connection between the success rate of prior annexations of other areas
proposed for annexation and the urbanizability of the CFA area specifically. Urbanizability depends
primarily on the availability of key urban services and facilities, which has a specific geographic
context.
Apparently, DLCD staff are using the 70% requirement as a proxy for how "streamlined" the
annexation process, but it is not explained what "streamlined process" means to DLCD staff in terms of
process requirements, or why 70% approval within one year is an appropriate measure to show a
process is "streamlined." The Springfield City Council has not denied an application for annexation at
any time in the last five years, but the requirement to document and count each annexation as part of
designated a CFA, in the findings adopting that designation, is busy-work task that creates regulation
for regulation's sake without a clear connection to achieving the rules' climate change purposes.
Recommendation: We reiterate that the other requirements under (1)(e) are adequate to ensure
unannexed CFAs are readily urbanizable and suitable for designation as a CFA. Remove this wasteful
requirement in (1)(e)(E).
'Daniel Oleksiuk, "Confining Rental Homes to Busy Streets is a Devil's Bargain," Sightline Institute (October 19, 2021),
available at hgps://www.siahtline.org/2021/10/19/confining-rental-homes-to-busy-streets-is-a-devils-bargain, (citing to
Finkelstein MM, Jerrett M, Sears MR. Traffic air pollution and mortality rate advancement periods. Am J Epidemiol. 2004 Jul
15.)
Attachment 1, Page 22 of 52 22
Revise (1)(f) as follows: "(f) At least one climate friendly area must have a minimum area of 25 acres.
Additional climate friendly areas must have a minimum area of 12 acres. Where a climate friendly area
includes or abuts a major arterial or freeway, the climate friendly area must have a minimum width of
500 feet. ri;.,,-,+„ fr;,,ndiy aFeas sh-,ii have ;,-+h of 7-5n f,,+ Exceptions to these minimum
dimensional requirements are allowed due to natural barriers, such as rivers; or due to long-term
barriers in the built environment, such as freeways. Exceptions are also allowed if potential climate
friendly areas are constrained by adjacent areas planned and zoned to meet industrial land needs."
Multiple interested parties have supported the idea that CFAs be mandated to meet minimum area
requirements rather than specific width requirements, including the Oregon APA. In response to these
comments, DLCD staff have stated that the minimum width requirements are necessary to ensure non -
liner proximity of uses and so that residents can walk in more than two directions to access a variety
of uses. We note that this is a new justification for the minimum width requirement; before the March
31 hearing DLCD staff indicated the purpose was to prevent air pollution impacts associated with
housing close to high traffic roadways and freeways.
If the goal of the minimum width is to ensure walkability, it is unclear how or why 750 feet minimum
width is necessary to achieve that outcome. We recommend that local governments be given the
flexibility to demonstrate that CFAs will promote non-linear proximity of uses, which can be achieved
even if not all parts of a CFA meet the minimum width requirements.
As a visual example, the existing "Nodal Mixed Use" areas in downtown Springfield may be a good fit
for CFA designation in Springfield, but as written we may have to illogically exclude areas from the
CFA designation to meet the minimum width requirement. The specific area on the west side of
Springfield's downtown is a potential prime redevelopment area that could accommodate a mix of
commercial uses, medical services, and housing, all in very close proximity to the EmX line that
connects downtown Springfield with the Gateway area and downtown Eugene and the University of
Oregon campus (Downtown Springfield bus station shown on the map below). As written, the rules
preclude inclusion of this area in the CFA because it would not meet the minimum width requirement.
Attachment 1, Page 23 of 52 23
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In addition, we echo support for City of Medford's comments (shown below) and those presented by
the Homebuilders Assocation, which articulate how the proposed rules are racist and have not been
analyzed for how they will further perpetuate discriminatory planning practices:
"Under the best of circumstances in our particular case, CFAs will provide
higher density housing in walkable neighborhoods. But that housing will
not provide opportunities for homeownership (see detailed discussion
below). As DLCD staff and Commissioners well know, homeownership
provides a vital instrument to build intergenerational household wealth.
An instrument that has, through an array of racist public and private
policy, been withheld from people of color—Black Americans in particular.
Until the unintended consequences of these rules on homeownership are
addressed, we should view them ... [in the same way]... we now view single
family exclusive zoning." - City of Medford March 2022 comments
OAR 660-012-0315 (Designation of Climate Friendly Areas)
Average Buildable Residential Area Calculations: Springfield requests additional flexibility in the average
buildable residential area calculations in subsection (2), specifically the mandatory assumption in (2)(d)
that residential units will occupy only 30% of the total buildable area within a CFA. It is not clear how or
why this percentage was selected, and the rules offer no flexibility to use a different assumption based
on local factors.
DLCD staff offered the following explanations as the basis for the 30% assumption:
1. Not all buildings will be mixed use, some will be 100% office, some will be 100% residential;
2. Not all buildings will be built to maximum potential building envelope size (most will not); and
Attachment 1, Page 24 of 52 24
3. Generally, it's less common to build residential units in walkable mixed-use areas than other use
types, like offices and services.
Reasons 1 and 2 justify a percentage of residential uses that is less than 100%, but provides no
explanation for the mandate to assume only 30% is housing. A housing mix of 50%, for example, would
still fall within the circumstances described in reason 1 and 2. Additionally, reason 3 is not consistent
with Springfield's recent experience, where developers seem primarily interested in mixed use
development with large residential components. For example, two projects currently proposed in
downtown Springfield (a walkable area zoned for mixed use), include commercial on the ground floor
only with all floors above being 100% residential. One 3 -story project is currently under site plan review;
and another multi -story project is planning to submit applications this year. With a significant housing
shortage and the shift to remote work options rather in place of large centralized offices, this trend of
more residential development in mixed use areas seems very likely to continue.
Springfield requests the Department not mandate the use of 30% assumption in (2)(f), to provide cities
more flexibility to develop reasonable assumptions based on local development patterns and local
needs. We are not opposed to offering 30% percent as a "safe harbor" assumption if flexibility is
provided for the local government to apply a different percentage as justified by analysis of current or
future development trends.
Recommendation:
(d) Local governments shall assume that residential dwellings will occupy a percentage of the buildable
square footage within climate friendly areas that is determined by current or predicted future market
trends within the climate friendly area, which must be supported by findings and analysis. Alternatively,
the local government may assume that residential dwellings will occupy 30 percent of the buildable
square footage within climate friendly areas in lieu of adopting findings and analysis to support a
different Dercentaee.
This suggestion was implemented in a limited way — it is allowed only with the alternative regulations
approach in OAR 660-012-0320(9). This means that the City is allowed to show different assumptions
around building capacity only if we are also interested in adopting alternative regulations that require
us to show overall 40 units per acre and 40 jobs per acre. We do not understand the need to couple
these two alternative options. We request flexibility to show that different buildable area assumptions
should apply, regardless of whether we wish to use the standard density and height requirements in
0320(8) or the alternative regulations in (9).
Recommendation: Implement our recommended language above, which does not depend on the City
also choosing to justify alternative development regulations.
OAR 660-012-0320 (Land Use Requirements in Climate Friendly Areas)
Minimum Density in CFAs: Springfield appreciates the flexibility regarding minimum density provided in
subsections (8) and (9):
Attachment 1, Page 25 of 52 25
• We support the option in (8) to exempt mixed use buildings from minimum densities for
developments with a FAR of 2.0 or above.
• We support the clarification in the alternative option (9) that CFAs should accommodate an
average of 40 dwellings and 40 jobs per net acre, rather than 40 dwellings and 40 jobs on each
acre.
• We support the options in (8) and (9) to apply lower density requirements in secondary CFAs that
are in addition to the primary CFAs.
However, we are still concerned about the ability of development to meet the minimum density of 25
units per net acre in (8) for all non -mixed use buildings in CFAs. Allowing density transfers between
phases of a multiple phase development would provide additional flexibility that would be helpful.
Last, Springfield is highly concerned that recent BOLI decisions regarding prevailing wage law in the
Coverage Determination for Eugene Downtown Riverfront Development issued by BOLI on May 13,
2021. Many working in local government and urban renewal are concerned that this coverage
determination has the effect of requiring payment of prevailing wage for any horizontal development
project that includes at least $750,000 of public funding on the infrastructure to serve the development,
including street networks and public pedestrian and bicycle facilities. Considering the importance of
providing public facilities for walkability within Climate Friendly Areas, we are very concerned about how
BOLI's current interpretation of prevailing wage law will increase the costs for private housing
development in CFAs. This decision has the potential to make dense urban housing development even
less affordable, which increases the need for local flexibility in regulations, to ensure affordability. In the
City of Eugene example, the developer had to remove density and height from a portion of the Eugene
Downtown Riverfront project to keep the project feasible, after prevailing wage was required. If
prevailing wages are required for development by the private sector within CFAs, then local
governments should maintain flexibility to build slightly lower densities.
Recommendation:
Revise (8) to include allowance for density transfer bonuses within multiple phases of a development:
"(8) Local governments may adopt the following provisions into development regulations for climate
friendly areas, or may follow the requirements in section (9). Density transfers between multiple phases
of a development may be allowed to meet the minimum residential densities. Local governments are
not required to enforce the minimum residential densities below for mixed use buildings (buildings that
contain residential units, as well as office, commercial, or other spaces) if the mixed-use buildings meet
a minimum floor area ratio of 2.0. A floor area ratio is the ratio of the gross floor area of all buildings on
a development site, excluding areas dedicated to vehicular parking and circulation, in proportion to the
net area of the development site on which the buildings are located. A floor area ratio of 2.0 would
indicate that the gross floor area of the building was twice the net area of the site."
The response from DLCD staff indicated that the manner in which density transfers would be allowed
is through the alternative development regulations in OAR 660-012-0320(9). The alternative
development regulations in (9) do offer some flexibility, but it does not address the specific concern
this comment was targeting. The alternative in (9) requires the City to demonstrate that the CFA as a
whole is expected to generate 40 dwelling units per acre and 40 jobs per acre. This allows broad
Attachment 1, Page 26 of 52 26
flexibility to shift densities within a CFA but the tradeoff is meeting a much higher actual density than
the 25 unit per net acre minimum that is required in the standard approach.
The comment here was to be clear that, within the standard minimum density, a single development
that has multiple phases can use density transfers to meet the 25 unit per acre minimum. We are
seeking an option under the 25 -unit -per -acre standard that provides less flexibility than if we used the
alternative regulations in (9) (density transfer across the entire CFA without regard to being part of a
common scheme of development), because that option does not mandate the City study and
demonstrate that, overall, 40 units per acre will be developed. We are merely seeking clear flexibility
to meet the 25 units per acre in the minimum prescriptive standards, across a multi -phase project that
is part of the same development.
Recommendation: Add recommended language above to subsection (8), in addition to the existing
flexibility in (9).
OAR 660-012-0325 (Transportation Review in Climate Friendly Areas)
It is unclear how the multimodal transportation gap summary in subsection (2) and (3) is related to the
requirements related to the unconstrained TSP project list in OAR 660-012-0160, or the prioritization
requirements for projects in CFAs in OAR 660-012-0155(4)(a). Without understanding how this
"multimodal transportation gap summary" relates to the TSP project lists (such as the multimodal gap
list in 660-012-0325(3)(d)), it is not clear what purpose that summary serves or how it is intended to be
used to guide planning and project implementation in CFAs. Performing a significant evaluation of
transportation in CFAs, in addition to the minor and major TSP update process in these rules, creates
duplicative work for cities and counties with no clear benefit or purpose for the additional work.
In addition, even if this requirement continues to be included in the CFA planning process, it is unclear
what standards would be used to identified "gaps" in multimodal transportation and in bicycle and
pedestrian facilities in CFAs, as required in OAR 660-012-0325(3)(a). It is also unclear what standards
would be used to evaluate the list of proposed projects to fill identified "gaps" in subsection (3)(b).
Section 0170 requires identifying gaps in individual modes, and then developing projects to fill those
individual mode gaps, and the city then considers combining into a multimodal project. The TPR rules
do not identify multimodal gaps; identify individual mode gaps that could be filled by multimodal
projects. It is unclear whether this section 0325 is in line with section 0170 or requires different analysis.
The "multimodal transportation gap summary" process becomes particularly confusing considering the
confusion around the prioritization factors in 660-012-0155 (discussed above).
Recommendation:
Remove (2)-(7)'s requirement for a "multimodal transportation gap summary" during this part CFA
planning. Jurisdictions will already be required to identify multimodal transportation projects when
developing a major or minor update to the TSP, at which time those projects serving CFAs can be
prioritized based on factors listed in OAR 660-012-0155.
Attachment 1, Page 27 of 52 27
DLCD staff's response was "This rule has been written in cooperation with ODOT. A process to study
the transportation effects of the climate friendly area is necessary, in lieu of the current —0060
process. Many CFAs will be adopted outside of a TSP update process." This response did not address
our comments above. These rules need to be clear and easily understandable so that jurisdictions
charged with implementing them can do so efficiently and with no or limited legal challenge.
OAR 660-012-0330 (Land Use Requirements)
Area of High Concern
Commercial and Mixed -Use Site Development: Subsection (3)(b) states "no vehicular parking,
circulation, access, display or loading shall be permitted on-site between buildings and public streets."
This requirement is incredibly broad and severely limiting on future development in a way that goes far
beyond what is reasonable to promote compact development and easy access by pedestrians, bicyclists,
and transit. It applies in all commercial and mixed-use zones, based on the language in section (3), and
applies to all streets, not to just the fronting street.
We strongly urge the Department to make the following changes in the proposed rule:
• The "public streets" referenced in (3)(b) should be limited to fronting streets only. For large
developments that use an entire block (e.g. grocery stores, home improvement stores, and other
large commercial development), it would be nearly impossible to comply with this rule since all
areas of the site that are not inside the building would be "between buildings and public streets."
Cities should be able to allow vehicle areas between side streets and buildings, or in the rear of
buildings, provided that the other pedestrian access requirements in the rules are met.
• The prohibition on any circulation, access, or loading between a building and any public street
does not account for off-street drop off areas for accessible public transportation (e.g.
RideSource provided by Lane Transit District), vanpools, or ride sharing serves such as Uber or
Lyft. This is a significant accessibility issue where loading zones cannot be provided in the right of
way along the frontage, due to safety concerns and/or street design. These areas should be
allowed between the building and the street, as long as the other pedestrian access and
accessibility standards are also met.
• The prohibition on parking areas between a (fronting) street and building should be limited to
new development (e.g. greenfield development) only in commercial districts and in mixed use
commercial and residential districts. This standard creates a significant hardship and barrier to
any redevelopment of existing commercial properties. The vast majority of existing development
in Springfield's Community Commercial district and Major Retail Commercial districts locate
parking between the front street and building. This standard would prevent adaptive
redevelopment of these existing properties because there is no way to relocate parking to the
side or rear of the building without demolishing existing buildings. This standard should be
applicable only to "greenfield" development. Redevelopment, changes of use, or other changes
to existing sites should be exempt from this prohibition.
Attachment 1, Page 28 of 52 28
Recommendation:
Reduce the overly broad scope of (3)(b) as follows: "No vehicular parking, ,.;r,., 'atieR aeeess,« display, er
ieadiRg shall be permitted on-site between buildings in new developments and fronting public streets.
Bicycle parking may be permitted."
When Springfield staff met with DLCD staff after the March 31 hearing, they indicated the intended
scope of the language in (3)(b) -- now (4)(b) -- was to be more limited, in line with the detailed
recommended edits we provided. During Springfield's meeting with DLCD staff on April 26, DLCD
indicated the May 19 rules draft would include language that would clearly allow local governments
to adopt both legislative exceptions to this language that apply to a class of properties, in addition to
a site-specific exemption process that the local governments could provide. Springfield staff stressed
the importance of limiting the language in (3)(b) to be clearer in addition to the other exceptions
proposed by DLCD staff. However, in the May 19 version of the rules, the recommendation to exclude
industrial districts was implemented, but the other situations were addressed only in a site-specific
exemption in new subsection (2) that appears to preclude cities from adopting broader legislative
exemptions.
The May 19 change to (3)(b) --now (4)(b) -- replaces "streets" with "pedestrian facilities" but our other
concerns regarding access, circulation, and parking for accessible transportation modes, transit, etc.,
are addressed only through the site-specific exemption language. This just creates more regulatory
burdens on development for the City and developers, because site-specific exemption processes are
much more costly to implement since they require a detailed review of the circumstances of each site,
the development of findings to justify each exemption, and a public notification and comment process
to allow the public input on making a "land use decision" or "limited land use decisions" and dealing
with any post -decision appeals including appeals to the Land Use Board of Appeals.
We recommend that DLCD make our suggested revisions to the rule itself, rather than LCDC adopt a
rule that is clearly too broad, placing the burden on local governments and developers to determine
where it does and doesn't make sense to apply the overly broad rule.
We could provide ample evidence of situations in which the language in (4)(b) is unworkable as
written, based on the concerns we identified in our March comments. Site-specific exemptions are a
good tool where it is unclear what issues may arise in applying the proposed rules but flexibility is
desired. In this case, however, the problems are clear and so many conflicts can be resolved with
changes in the rules rather than the proposed cost- and time -intensive site-specific exemption to deal
with these issues on a case-by-case basis at the local level. These situations are all shown visually in
our Attachment 3:
• Example 1 - Recent redevelopment of the McKenzie Willamette Hospital emergency room area.
As written, the rules would require a site-specific exemption to allow the configuration that
was developed where pedestrian and bike access, accessible parking, patient pick up and drop
off, and ambulance access is provided for the hospital's emergency room. Why would the
Commission not want to recognize this need in the explicit rule language, rather than shifting
the burden to cities and developers to justify exemptions?
Attachment 1, Page 29 of 52 29
• Example 2 -New medical facility at Oregon Neurology in commercial zoning area achieves the
desired outcome of this rule language as explained by DLCD staff but it is still at odds with the
actual requirements written in the draft rules.
With how the rules are written currently, when a site is completely surrounded by sidewalk on all
sides, it appears that providing any vehicular access, parking or loading would be impossible. Even if a
building was constructed in a "U" shape with all parking wrapped inside the building, there would still
necessarily need to be a driveway to that parking through the open part of the "U," which would be
placing a vehicle access area between the sidewalk and the building at the bottom of the "U" shape.
Recommendation: If unwilling to remove (4)(b), please provide even one single example of a
commercial or mixed-use development that includes any form of vehicular access, loading, or parking
that would comply with this rule as written (without making use of the site-specific exemption), in a
location not served by an alley and that has public sidewalks on all sides of the development. (This is a
common development context in Springfield for medium to large developments or redevelopments).
OAR 660-012-0340 (Land Use Assumptions)
Area of Moderate Concern
Common Horizon Year within MPO Jurisdictions: The requirement in subsection (1) for a common
horizon year for all jurisdictions within metropolitan areas creates significant challenges for Eugene and
Springfield, who have been on separate planning horizons since the state legislature mandated each city
adopt our urban growth boundaries and buildable lands inventories in ORS 197.304 (Added by Laws
2007, c 650, § 2, effective January 1, 2008). Given that Eugene and Springfield are on different timelines
for each city's Housing Needs Analysis, which will inform the future land use assumptions under this
rule, adoption of a common plan horizon for the TSP creates undue burdens to coordinate our
respective TSP update processes. This additional requirement does not seem to be justified by any state
interest that overcomes the burden on our local planning resources. We believe that jurisdictions can
coordinate their local plans without requiring them to share a common plan horizon.
Future land use growth assumptions: Subsection (4) is not clearly worded, but it appears to require that
we assume a CFA grows at a faster rate than the rest of the community, or fully develops prior to any
other part of the City. If that is the intended meaning, this is problematic because the market may not
support the high levels of development required in CFAs (e.g. high density development, highly
improved walkable development). If more growth is occurring outside CFAs as a result of the market,
we would like to be able to plan to serve these areas in an equitable way. Development in Springfield,
even outside CFAs, is more beneficial to statewide transportation greenhouse gas reduction goals, than
development in outlying rural satellite communities that rely on more vehicle miles traveled to
commute to and from the metropolitan area. We want to see these rules produce climate friendly and
equitable communities and not be counterproductive by further exacerbating the existing housing crisis.
Recommendation:
Remove the requirement for a common horizon year for all MPO jurisdictions in subsection (1).
Attachment 1, Page 30 of 52 30
The requirement previously in 0340(1) now appears in 0340(3). The DLCD response to this comment
states, "The rule requires local governments to develop future land use assumptions for both the
planning horizon year of the local TSP and a common horizon year across the metropolitan area for
regional transportation planning purposes. This could be the same year but need not be." This
solution does not deal with our concern in our comment, and actually adds to the workload of the
cities without a clear justification for it. By requiring two sets of land use assumptions, cities will have
to do twice the work to determine detailed land use assumptions at two different points in time.
Given that the future land use assumptions in this section 0340 are not used in any regional decision-
making process, and are only adopted in the local TSP, there seems to be no purpose to the
requirement to model a second set of future land use assumptions for the metropolitan area a whole
for a year other than the planning horizon year. The Division 44 rules for Regional Scenario Planning
do not use the future land use assumptions adopted under this division 12 rule, and even if they did,
these assumptions have already been adopted by Eugene -Springfield in the 2015 Regional Scenario
Plan and are not proposed to be updated as part of the Division 44 rules implementation.
Remove the first sentence of subsection (4). Alternatively, revise to more clearly state what the rule is
requiring.
Subsection 0340(4) in the March 31 rules version is now 0340(6). The DLCD response states, "Revised
this section to tie growth assumptions for CFAs to the residential and employment targets from the
outcome -oriented standards in 660-012-0320(9)." We are confused by this response and still do not
understand what this section is requiring; Cities are not required to adopt the outcome -oriented
standards in —0320(9), so what are the "growth assumptions for employment and housing" in 0320 if
not using the outcome -oriented approach? What does it mean to "allocate growth assumptions"? As
worded, we are only guessing what the rules are requiring, as explained in our March comment above.
And, if our guessed meaning is correct, it is still problematic for the reasons we explained in our March
comment above.
DLCD staff indicated we could propose alternative wording for this section to clarify it; however, we do
not understand what this language was designed to accomplish and therefore cannot recommend
how to clarify it. The burden for proposing language that clearly communicates its purpose should be
on the department proposing to adopt rules, not on the local governments seeking to understand
what those rules mean.
OAR 660-012-0360 (Key Destinations)
Clarify that these are the types of things that will be key destinations, but that it is up to the community
to determine which ones are regionally significant. For instance, there are small paths, trails, gyms, or
other uses listed that would not be beneficial to prioritize in planning in this way.
Recommendation:
Add "regionally significant" to (2) so that it reads "Key destinations include, but are not limited to,
regionally -significant destinations that are:"
Attachment 1, Page 31 of 52 31
We met with DLCD staff and discussed this item on 4/26. Although some changes were made to allow
for additional uses, this rule still does not allow local jurisdictions to exclude the types of destinations
listed in (2) that are not regionally significant. It is illogical to require planning at the citywide level for
access to people's garage gyms they set up during the pandemic, childcare facilities that only serve a
couple of kids out of someone's individual home or move frequently, government offices that are
rarely accessed by only a few staff and are never visited by the public, etc. Staff shared in our meeting
that the intent was to plan for destinations that should have transit service to get people to them.
Although we agreed on the intent being regionally significant destinations that are expected to attract
a higher -than -average rate of pedestrian, bicycle, and transit trips, the rules do not reflect this intent.
As currently proposed, this rule requires wasteful data gathering and analysis that does not help to
achieve the desired climate and equity outcomes of this rulemaking.
OAR 660-012-0360 through 660-012-0450 (Parking)
Significant Changes Need Resources for Parking Management: The changes to parking rules are
significant. In order to ensure public safety and operations of our transportation system in a way that
serves our community's needs, significant resources will be needed to manage parking. Please support
local jurisdictions for successful implementation by providing resources to establish and maintain
parking management and enforcement programs. For public safety and natural disaster preparedness, it
is important to have programs that ensure that rights-of-way remain clear for emergency vehicle access
and evacuations. To promote accessibility and human powered transportation, it is also important to
ensure that pedestrians have access to clear sidewalks that are not blocked by parked vehicles.
Concern about Trees Blocking Vision Clearance: We are concerned that 660-012-0405(4)(b) could
present a safety issue if trees are required to be planted in locations along driveways that block the
vision clearance area that is needed for visibility to safely pull out of driveways. Consider revising this to
clarify what "must provide street trees along driveways" entails and ensure it does not create unsafe
conditions.
Unclear: 660-012-0410(2)(b) is unclear. It is clear that it needs to accommodate (a) plus something from
(b). However, is it "Level 1 electric charging serving an additional 30 percent of total parking spaces" and
"Level 2 electric vehicle charging stations serving an additional 15 percent of total parking spaces" OR
"direct current fast charging stations serving an additional five percent of total parking spaces." or is it
one of the three items listed in (b)?
Misinterpretation of Enforcing Parking Mandates: 660-012-0435(C) states, "Not enforcing parking
mandates for commercial developments" could be interpreted as not being able to do any code
enforcement around parking at commercial developments in CFAs. We recommend rewording to state,
"Adopting land use regulations without parking mandates for commercial developments."
"Alternatives" to Parking Mandates are Illusory: In lieu of removing all parking mandates, OAR 660-012-
0445, offers "alternatives" that are so limiting or else are so administratively burdensome, that
Springfield would be left with no meaningful choice of alternatives. One of the "alternatives" in (1)(A)
requires a "fair parking policy" that implements at least 3 out of 5 requirements in that subsection. Only
Attachment 1, Page 32 of 52 32
one of the 5 options is a land use tool that can be applied at development review: reduction of
multifamily parking requirements to 0.5 spaces per dwelling. All four other options in the fair parking
policy would require new City services or programs that are not currently provided by Springfield and
that we do not have staffing to support implementation or enforcement. "Unbundled parking," flexible
commute benefits, and a parking tax all require significant resources by the City to create new programs
that can be monitored and enforced.
The second "alternative" in (1)(b) repeals so many items, that it is unclear what type of parking
regulations could even remain under this approach. It would be helpful to have an explanation of what
remains with this option. What does it consist of instead of solely stating what it does not consist of?
Importantly, (1)(b) also requires the City to adopt and implement a new ongoing program in the form of
a "parking benefit district." This requires not only issuance of parking permits and collecting fees, but
using those revenues specifically for public improvements in the area. Springfield has one parking
program in place for downtown areas, but the revenues are less than the cost of running the program.
Our program, which is currently limited to an area in downtown, has an operational overhead of
$120,000/year. This includes 2.5 FTE, office space, equipment, and subscription to vendor software,
insurance, etc. These figures do not include any of the City staff time that are also necessary to support
the program. Changing that program to a parking benefit district would require the City to identify
significant additional financial resources to make the required improvements in the district, since the
parking program runs at a net loss currently and all revenues collected are spent to mitigate the
program's losses. With at least some revenue needing to go to improvements, the City would need to
identify other resources to make up the larger gap in the parking program expenses.
Recommendation:
Provide resources to jurisdictions to manage and enforce parking.
The DLCD staff response states, "Most Oregon cities over 15,000 people have been able to fund
parking management through a mix of permits, meters and enforcement. Will continue to work on
guidance to assist." DLCD staff also corresponded with us via email. The response appeared to be
speaking to the current conditions, but not the future implementation of the new requires in the
proposed rules. Our existing program experience, described above, leads us to believe that there will
be a cost associated with the necessary parking management needed to successful implement these
rules and manage parking to ensure public safety. More broadly, this section of the rules fails to fulfill
ORS 197.040(1)(b)(A) and (8) which state, "Allow for diverse administrative and planning capabilities
of local governments" and "Consider the variation in conditions and needs in different regions of the
state and encourage regional approaches to resolving land use problems" respectively. See cover
letter of March comments for additional previously submitted comments on this topic.
Revise 660-012-0405(4)(b) to clarify requirement and ensure it does not create unsafe conditions.
No changes made. DLCD staff responded, "Staff will add to guidance; trees are part of the current TPR
requirements and can be successfully selected to address visibility concerns." Why not clarify in these
rules to ensure that they do not create unsafe conditions?
Attachment 1, Page 33 of 52 33
State what remains in 660-012-0445(1)(b) reduced parking management approach option.
In response to this comment, DLCD staff explained where parking would still be allowed as follows:
"Buildings that are not near frequent transit, not TOD, not mixed-use, not long -vacant, not
change of use, expansion, redevelopment, not in historic district, not within % mile walk of
Climate -Friendly Area not LEED or Reach Code" as follows:
• Residential single unit dwellings
• Residential 2+ bedrooms in multi -unit, duplex, triplex, quadplex development
• Commercial development larger than 10+ employees or more than 3,000 square feet
that is not a bar, tavern, or school.
Based on DLCD staff response, what remains subject to parking mandates under the "alternative" to
total parking mandate repeal is extremely limited — there are only three types of development that
can include parking requirements and even then, it is only a subset of those three types. Again, we
believe that it would be easier for the City and public to understand (and implement) this rule if it were
written in terms of what local governments can still allow (which is basically three things), compared
to the current proposed list of 15 categories in 0445(1)(b) that state what we cannot regulate.
Last, no changes have been made to address our concern that the "choices" offered between repeal of
all parking mandates vs the alternative options in 0445 is illusory and offers no meaningful choice to
jurisdictions with limited resources. Both the "fair parking policy" alternative and "reduced regulation
parking management" alternative would require the city to provide new services or programs for on -
street parking management that are an unfunded mandate. The "reduced regulation parking
management" is not very different from total parking repeal, as it allows regulation of parking in very
few specific contexts.
Last, we note that even the choice to repeal all parking mandates is also likely to be costly for the
public in the long run, at the jeopardy of public safety. When on-site parking options decrease before
alternative modes are actually available (as mandated in these rules), illegal parking that blocks
emergency vehicle access increases, often significantly. We have observed this happening in areas of
Springfield not well served by transit where parking is limited. This creates risks to public health and
safety by impeding first responders' ability to respond to an emergency quickly.
OAR 660-012-0500 through 660-012-0520 (Pedestrian Planning)
Crash Data Required for TSP Adoption Not Available: Cities do not have access to crash data from the
past several years due to the delays in crash data processing at ODOT. The latest available data is 2019,
even though we are currently in 2022. Given this delay, it is impossible to fulfill the requirement in 660-
012-0505(2) to "include all reported incidents from at least five years prior to the transportation system
plan base year to the year of adoption of the pedestrian system inventory." As written, it also does not
account for the time it takes to complete the adoption process. What if the data gets older during the
adoption process? It is not feasible to constantly be updating and redoing crash analysis work during the
adoption process. Same comment applies to 660-012-0605(3) and 660-012-0805(2).
Attachment 1, Page 34 of 52 34
Unclear Term: 660-012-0510(5)(b) refers to "access -focused arterial and collector street." It is unclear
what this means. What definition of access is being used? Please clarify.
Recommendation:
Revise 660-012-0505(2), 660-012-0605(3), and 660-012-0805(2) to state "This must include all reported
incidents from the most recent five years of available crash data."
This was changed to "most recent five years prior of available data prior to the year of the adoption of
the pedestrian system inventory/bicycle system inventory/street and highway system inventory."
While we appreciate the attempt to implement our recommendation by changing the first part of the
requirement to the most recent five years prior of available data, tying it to the year prior to the
adoption of the inventories does not make sense and adds more challenges to implementation. We
would like to know why "prior to the year of adoption of the inventories" was added. The staff
response stated, "Changes made to reflect using the most recent available data."
The recommendation we included above would be simpler and not require additional work to update
the data set to inform the analysis once the planning process has started. As currently proposed by
DLCD staff, jurisdictions would have to do additional work depending on how long the planning and
adoption process takes.
OAR 660-012-0600 through 660-012-0630 (Bicycle Planning)
Recommend Citywide Inventories: It would be more beneficial to have less detailed data (e.g. removing
"condition" requirement in 660-012-0605(1)) and instead require the inventory geographic requirement
in subsection (2) to be citywide. The areas covered in the existing subsection 2 covers most of our city
but leaves oddly shaped gaps. It would be more intuitive for data collection and more useful from a
pedestrian and bicycle network planning perspective to do citywide inventories.
Recommendation:
Revise pedestrian and bicycle inventories to include full city geographic area. Revise 660-012-0505(1)
and 660-012-0605(2) accordingly.
The pedestrian and bicycle inventory requirements in the proposed rules combined with lack of
sufficient implementation resources are likely to further perpetuate discriminatory planning. The DLCD
staff response stated, "The geographic scope of required pedestrian and bicycle inventories has been
developed in coordination with ODOT. The rules allow additional facilities to be inventoried, but do
not require it." Given that there are not enough resources identified to implement the bare minimum
required by these rules, we highly doubt that resources will become available in the next year or two
in order to complete citywide inventories unless the rules are changed to require it.
To help visualize application of the rules, we have mapped out the areas that are X from a school as
well as the arterial and collector streets and provided this as Attachment 2. The areas excluded from
the inventory locations show how underserved populations would be further neglected and
Attachment 1, Page 35 of 52 35
underinvested in. These rules should support pedestrian and bicycle planning to support these
community members to safely walk and bike get to where they need to go, including to access transit.
If there's a data gap in the inventory requirements, how are cities to select projects in their
Transportation System Plans to serve these locations that have higher than average populations of
underserved community members?
Although the rules refer to climate friendly areas, it is unclear how an inventory of such areas is to be
completed prior to designating the climate friendly areas or the timeline for inventory may be too far
into the future to meet the ambitious timeline requirements. The discriminatory planning and timeline
issues would both be resolved by implementing our recommendation to do citywide inventory data
collection. It would also simplify the rules and the data collection.
Given how feasible it is to bike from one side of our metropolitan area to another, these rules should
support walking and biking citywide. If people in the metro areas can walk, bike, and take transit to
reduce transportation costs to be able to afford the rising cost of housing, it will reduce people being
pushed out into the smaller satellite communities in the rural county areas. If they are pushed out,
greenhouse gas emissions are likely to go up due to forcing more people to drive to commute back and
forth. It is easier, more economical, and more equitable to encourage walking, biking, and transit
across the full metropolitan area and not set up the transportation planning to take a piecemeal
approach.
This is one example of how the rules are not ready for adoption and should be analyzed for the harm
they may produce when implemented. Although we appreciate the work DLCD staff has done to show
the sections of the rules that support the equitable outcomes (see LCDC March 31, 20222 Agenda Item
#3 Attachment B: Equitable Outcomes Crosswalk), the rules have yet to be analyzed to evaluate how
they may further regulate discriminatory planning and produce further inequities.
OAR 660-012-0700 through 660-012-0720 (Public Transportation Planning)
Scope of intercity transit services is unclear: Please clarify what is included or not in 660-012-0705(3).
Does this include private providers or solely public transportation systems? For instance, airport shuttle
bus services, Greyhound, etc. Would this include both publicly and privately run intercity services such
as LinkLane and Pacific Crest Bus Lines?
Recommendation:
Clarify scope of 660-012-0705(3).
Some changes made to add reference to ADA, but still no answer to our clarification questions. "Public
transportation" is not a defined determine. Does it mean it is owned and operated by a public entity or
does it mean services that transport public? For example, Greyhound and Bolt bus services are the
latter, but not the former: are Greyhound and Bolt Bus considered "public transportation" under these
rules?
OAR 660-012-0800 through 660-012-0830 (Street and Highway System Planning)
Attachment 1, Page 36 of 52 36
Concern about analysis and data collection over action: There is no point to collect data if it is not going
to be used. Throughout the transportation system planning sections, please consider how the data that
will be collected will be used and revise rules to remove requirements to collect unnecessary data. For
instance, the rules in 660-012-0805(1) require that location, condition, and number of general-purpose
travel lanes and turn lanes, including widths for arterials is collected. How much detail about lane width
along a travel lane that varies in width on a given corridor is useful? Some level of information is helpful
to inform conceptual street design, but the level of field data that is required to be collected should
consider the resources it takes. Right -size the collection to match the next steps of how the information
will be used.
Concern about Conflicts with Prior Community Based Planning and Other Community Values: We are not
clear about what happens when the "equitable allocation" of right-of-way and the mode priorities
required by 660-012-0810(1)(c) conflicts with locally adopted Facility Plans or other past planning work
that communities and the state have invested in. When "priority transit corridors" are also urban
arterials, we are concerned with the mandate to prioritize pedestrians and bicyclists over other types of
users who rely on that corridor, such as freight. The rule should allow cities and counties to develop
priorities based on balancing the various needs for that corridor, rather than dismiss those community
values, including business viability and economic development.
We support the allowance, not requirement, of narrower local street standards: 660-012-0810(2)(b)
states that "Local street standards may allow pavement 28 -feet wide where on -street parking is
provided on both sides of the street and narrower widths where on -street parking is not permitted.
Local street standards adopted by a city or county must be developed as provided in ORS 368.039."
Although this is narrower than our local street standards in Springfield, which allow for 28 -foot wide
local streets with parking only one side of the street, we appreciate the flexibility provided to cities to
follow the process that includes consulting with fire departments to ensure public safety is considered in
setting street width standards. It is important to ensure that larger vehicles, such as fire ladder trucks,
school buses, garbage trucks, and other similar vehicles can access local streets and that streets support
evacuation needs for emergencies.
Area of Moderate Concern
Arterial Categories Do Not Make Sense: The proposed rule for local access priority arterial goes against
basic characteristics of what an arterial is. 660-012-0810(4)(a) requires designation of each segment of
an arterial as one of three categories: local access priority, through movement priority, or arterial
segments in a CFA. Arterials are intended to carry high volumes of traffic and primarily provide mobility
and not access. They connect different land use types within the community. Collector and local streets
are intended to provide more access and serve shorter trips than arterials. Given this, the category of a
"local access priority" arterial street is confusing. When local access is prioritized on arterials, it causes
traffic crashes due to turning movements and speed differentials between through movement vehicles
and turning vehicles that are entering and exiting the street. Please do not perpetuate the "stroads"
(roads that are trying to become streets) we have in Oregon that kill and severely injure many people
each year. Additionally, arterials are generally intended to be designed for fast transit travel times as
expressed, which is valued in the public transportation planning section of these rules. Focusing on
access on these facilities will be counterproductive to both safety and GHG reduction goals. It is also
unclear if or how DLCD has coordinated with ODOT to ensure there is not a conflict between this section
Attachment 1, Page 37 of 52 37
of the proposed rules and the existing ODOT Blueprint for Urban Design requirements that are currently
being integrated into the Highway Design Manual.
Remove City Management of Freeways: ODOT manages the freeway system. 660-012-0810(5)(a)
requires cities to consider high -occupancy vehicle lanes, including transit lanes, and managed priced
lanes on freeways. This requirement is outside city government authority.
Clarification for existing TSP protects affecting interchanges: Please clarify that "new and expanded
interchanges" referenced in 660-012-0830(1)(a)(B) does not apply to the entire influence area of an
interchange, but only to the interchange itself. We are concerned that applying this rule to the entire
influence area of an interchange would effectively prohibit Springfield from including several current TSP
projects that are intended to increase safety in interchange influence areas, such as projects at Q Street
and Laura Street (Springfield TSP project R-10), OR 126 and 52nd Street (Springfield TSP project R-40), OR
126 and Main Street (Springfield TSP project R-43), and OR 126 and 42nd Street (Springfield TSP project
R-43).
Account for inflation for smaller projects exception: We are concerned that the $5 million in 660-012-
0830(1)(b)(A) will be eroded by inflation over time. In order to index this to inflation, we recommend
adding to the rule to adjust based on the consumer price index (CPI -U West Region) so that the value
does not effectively decline over time. Alternatively, we would support reference to another index for
inflation such as National Highway Construction Cost Index.
reciate Changes to 0830 Enhanced Review: We acknowledge and appreciate the significant revisions
made to this section to ensure that small scale, safety, and GHG reducing projects that align with the
intent of this rulemaking process do not have to complete the enhanced review process. Thank you!
Need to allow for dedication of, not gust reallocation of right-of-way: In addition to the reallocation of
right-of-way being an exception, we would like to see dedication of right-of-way to "provide more space
for pedestrian, bicycle, transit, or high -occupancy vehicle facilities" be included in the exceptions to the
Enhanced Review of Select Roadway Projects. For example, dedication of additional ROW needed for
transit lanes should be allowed and encouraged without having to do the enhanced review process.
Recommendation:
Remove 660-012-0810(1)(c) because it adds nothing the City's prioritization requirements except to the
detriment of prior facility planning work or other planning work.
Not addressed and no relevant explanation provided. DLCD staff response states, "These rules were
developed in close coordination with ODOT."
Remove 660-012-0810(4)(a) to eliminate categorization of arterials as local access priority, through
movement priority, and arterial segments in CFAs.
Not addressed. The DLCD staff response states, "The purpose of the rules to categorize arterial
segments is exactly to discourage 'stroads, 'which try to accomplish both access and through
Attachment 1, Page 38 of 52 38
movement and do neither well. Facilities should be planned to focus on one or the other and make
necessary tradeoffs." We also discussed while meeting with DLCD staff on 4/26 and explained how the
"local access priority" arterials contradict the characteristics of an arterial. We suggested the local
jurisdictions could reclassify a street from an arterial to a collector if the desire was to shift from a
focus on providing for regional trip needs and instead shifting to more local access to property and
street connectivity functions. This would resolve the confusing rules that would go against the basic
definition of an arterial street classification.
The "local access arterial" in (4)(a)(A) could further perpetuate safety problems and roads that try to
serve all functions, doing exactly what both City of Springfield and DLCD staff agree we do not wish to
see. We are perplexed as to why this section remains in the rule after providing written comments and
explaining the problem verbally with staff. The introduction to the subsection even defines an arterial
street as one "to provide travel between neighborhoods and across urban areas," not to focus on
access. The more driveways there are on arterials, the more conflicts there are and the more lives that
are lost. This is another example of unintended, harmful consequences of the rules, doing our best to
help provide solutions and improve the rules, and not being heard.
Remove 660-012-0810(5)(a) to reflect that city governments do not manage ODOT's freeways.
No changes made. The DLCD staff response states, "These rules were developed in close coordination
with ODOT. ODOT does have statutory authority and responsibilities for state highways, however
state agencies must also act consistently with local comprehensive plans." This comment ignores
provisions of state law around who has authority to designate high -occupancy vehicle lanes and
transit lanes on state highways (e.g. freeways), as determined by the Oregon Legislature by statute.
ORS 810.140 states explicitly:
"(1) Any road authority may designate lanes on its own highways that
are to be used exclusively by buses or high occupancy -use passenger
vehicles for the purpose of conserving energy and facilitating public
transportation.
(2) Any restriction or limitation imposed under this section must be
imposed by proper order(.]"
And, by statute, the "road authority" for state highways is the Oregon Department of Transportation.
ORS 810.010(1) & (3). ODOT has adopted requirements to act consistently with local facility plans for
access control and spacing requirements, etc., but the City has been unable to find any requirement in
statute or ODOT rule that requires ODOT to make changes to highway operation (such as designation
of high occupancy lanes or transit lanes) consistent with locally adopted plans. See OAR 734-051-1040
for requirements to be consistent with local facility plans for access spacing standards, sight distance
standards or channelization requirements; however, there is no similar language in rule or statute for
high occupancy vehicle lanes, transit lanes or bicycle facilities on state highways.
Recommendation: Because this proposed rule appears to contradict state statute, DLCD staff or LCDC
should request an Attorney General opinion, providing guidance to LCDC regarding whether ODOT is
Attachment 1, Page 39 of 52 39
required to adopt operational changes on state highways for high occupancy lanes or transit facilities
based upon a local government's adopted facility plan.
Include a statement in the response to comments in the rulemaking to clarify that 660-012-0830(1)(a)(B)
does not apply to the entire influence area of an interchange, but only to the interchange itself.
No changes made. The DLCD staff response states, "These rules were developed in close coordination
with ODOT." This does not explain why this requested change has not been addressed. Please take the
time to coordinate with ODOT to either make the requested changes or provide explanations why the
changes are not being made.
Revise 660-012-0830(1)(b)(A) to allow adjustment for inflation: "Changes expected to have a capital cost
of less than $5 million as of the effective date of this rule, adjusted annually based on the Consumer
Price Index -Urban West Region, rounded up to the dollar." As an alternative to the CPI -U West, the
National Highway Construction Cost Index could be used.
The DLCD staff response states, "This amount has been increased tenfold from earlier drafts and may
be adjusted in future rulemaking if necessary." While we appreciate the increase that was made since
earlier drafts of the rules, we do not understand why DLCD wishes to defer fixing this foreseen
problem instead of implementing our recommended solution shown above. Why not address it?
Add dedication to 660-012-0830(b)(B) to read, "Changes that reallocate or dedicate right of way to
provide more space for pedestrian, bicycle, transit, or high -occupancy vehicle facilities."
DLCD staff response states this clarification was not made because "dedication for these facilities is
not a covered proposed facility under (a). Subsection (b) is a set of exceptions to subsection (a)." If
none of the "enhanced review" scenarios under (a) could include dedicating more right of way for
bike/ped facilities, then we fail to see why the exemption in (b) for reallocating right of way for these
bike/ped facilities is needed under (b)? We see the need for this clarification because there is potential
for reading the requirement for enhanced review for "expanded" interchanges or new auxiliary lanes
as encompassing dedication of new right of way for bicycle or pedestrian facilities. This is a minor
change to the rule language but one that would be helpful to avoid unintended consequences in
implementation.
OAR 660-012-0905 (Land Use and Transportation Performance Measures)
Resources Needed for Ongoing Performance Measuring Analysis: Local jurisdictions need resources from
the state to be able to do the ongoing analysis required to track these performance measures. For
instance, as pedestrian and bicycle projects are built, 660-012-0905(2)(b)(A) which measures Level of
Traffic Stress 1 and 2, will need to be re-evaluated and updated. Most small to mid-sized cities in Oregon
do not currently have the resources to do this.
Safe and Convenient Marked Pedestrian Crossings Undefined: Subsection (b)(B) is the percent of
collector and arterial roadways in CFAs and underserved population neighborhoods with safe and
convenient marked pedestrian crossings. It is unclear how this is defined and needs to be clear if the
Attachment 1, Page 40 of 52 40
state desires consistent measurements from city to city. It would also be beneficial for cities to be able
to track incremental progress that is made that enhancing pedestrian crossing opportunities, but may
not meet the "safe and convenient" threshold.
For example, the City of Springfield has been working with ODOT for three plus years to get a marked
crosswalk with an advance stop bar and signs installed on S. A St at 4t" St to improve the pedestrian
connection between the Springfield transit station and downtown. Certain design types for "safe and
convenient" crossings (e.g. full rapid flashing beacon crossing) may not be allowed in certain locations by
engineering standards, such as ODOT's Traffic Manual.
Recommendation:
Provide resources necessary for ongoing performance measure analysis.
DLCD staff responded, "Included in ODOT funding." We appreciate that some funding is being
provided for this but are concerned that the overall funding allocated for implementation of these
rules continues to fall incredibly short of the need.
Clarify how "safe and convenient marked pedestrian crossings" in subsection (b)(B) is defined and allow
for ability to track incremental progress that enhances the pedestrian network.
The DLCD staff response states, "'Safe and convenient' is pulled from ODOT's level of pedestrian traffic
street. Will allow tracking using that methodology." Given this response, we would recommend
changing the rules to reference the ODOT definition so that the requirement is clear and reflect staff's
response.
OAR 660-012-0920 (Compliance Hearings)
Recommend Posting Alternative Work Programs: We recommend that DLCD post approved alternative
work programs online so that they are publicly available. We do not want people to complain that a
jurisdiction has missed deadlines as per 660-012-0920(2) if it is on track with an approved alternative
work program.
Area of High Concern
Enforcement for Compliance Reports is Ultra Vires: The enforcement mechanisms provided in OAR 660-
012-0920(7) are outside of the authority provided to LCDC by the Oregon legislature. Because there is
no legal authority for any of these enforcement actions, at minimum section (7) should be removed.
Without a legal authority to take compliance action against cities and counties under section 0900-0920,
we suggest reconsidering whether sections 0915 and 0920 serve any meaningful purpose.
• No statutory authority to remand reports under (7)(a). There is no statutory basis for requiring
cities to submit the reports required under sections 0900-0920. LCDC's legislative authority to
remand items to cities is limited to items adopted under periodic review in ORS 197.633(5).
Therefore, there is no statutory basis for LCDC to remand the reports to the local jurisdictions.
Attachment 1, Page 41 of 52 41
• The authority to issue a compliance order under ORS 197.320 does not include the reports
required under sections 0900-0920, thus (7)(b) is also outside the scope of LCDC's authority. The
list in ORS 197.320 is a limited list of reasons that LCDC may issue a compliance order. Nothing in
that statute references authority to monitor progress with these reporting requirements under
these sections.
• The language in (7)(c) stating that LCDC may "invalidate" an existing acknowledged TSP has no
basis in any language in ORS chapter 197 that establishes the statewide planning program. There
is nothing in the statutes that contemplates that LCDC or DLCD may invalidate a plan that was
previously acknowledged to be incompliance with the statewide planning goals. LCDC's and
DLCD's enforcement authorities are specifically provided by state law and cannot be expanded
beyond what is authorized in the statutes by agency rulemaking.
Recommendation:
Remove subsection OAR 660 -012 -0920(7)(a) -(c), and further consider whether there is any legal
purpose behind sections 0915 and 0920 generally.
There was no comprehensive response to this significant issue in the DLCD staff response. DLCD staff
represent that DOJ staff reviewed it; however, if there is legal authority for this provision, DOJ or DLCD
staff should be able to provide a specific state statute establishing that authority. None has been
provided. Our original comments remain entirely unaddressed on this significant issue.
We have raised this issue in the March written comments and verbally at the 4/4 Q&A session. At the
Q&A session, City staff requested a response that points to the source of authority for this part of the
rule. We heard that DLCD staff was going to meet with DOJ counsel and asked about the outcomes of
that meeting at the 4/11 Q&A session. DLCD staff shared at the 4/11 Q&A session that they didn't get
as detailed a reply as they would like and that they wanted to come back to this subsection. The only
change made in this section was to fix a typo. No substantive changes have been made and we have
no reason to believe staff have come back to this subsection nor identified what legal authority exists.
We have yet to receive information on where the authority resides, if it even exists.
Attachment 1, Page 42 of 52 42
OAR 660-044-0000 through 660-044-0110 (Scenario Planning)
OAR 660-044-0015 (Applicability — Compliance Schedule)
Deadline for Work Plan is Unrealistic: There is a significant amount of work required to establish a work
program, particularly in MPO areas that involve multiple jurisdictions. It will take several months, at
least, to develop a governance structure for the regional scenario development in Central Lane. In
addition, because the work plan under this section would be joint with the work plan for climate friendly
areas under division 12, we request an additional 6 months, at least, to develop the joint work plan.
Mismatch in description of Central Lane 2015 Scenario Plan work to be done: Springfield appreciates
the flexibility to allow the 2015 Central Lane Preferred Scenario to act as the regional scenario under
these rules. However, the specific references in (2)(b)(B) do not appear to correctly identify the work
that would still need to be done by the Central Lane MPO or the local governments. Subsection (2)(b)(B)
states that the Central Lane local governments would not need to redo prior work on the preferred
scenario except as needed to prepare a complete scenario plan under these rules, specifically
referencing that work would be needed to meet OAR 660-044-0110 (3) and (7)-(10). As described
below, some of those requirements are already met in the Central Lane Preferred Scenario.
0110(3): This subsection requires "policies and strategies intended to achieve the target
reductions in greenhouse gas emissions." The Central Lane Scenario Planning Final Report
identifies the policies and strategies in the preferred scenario that would achieve a 20%
reduction in emissions by 2035. We would like it to be clear that the local governments could
but would not be required to revisit the policies and strategies described in the Central Lane
Preferred Scenario.
0110(7): Appendix F of the Central Lane Scenario Planning Final Report includes projections for
the preferred scenario that meet this subsection. It is unclear what additional work would need
to be completed?
0110(8): Appendix D (Scenario Planning Methodology) describes the inputs used to model
reductions in greenhouse gas emissions across the various scenarios, and Appendix E (Reference
scenario summary memo) more specifically explains the assumptions that were used to project
the reduction in greenhouse gas emissions in the reference scenario, which the preferred
scenario was compared against. This analysis should meet this requirement in (8) and it is
unclear what additional work would be needed?
City staff emailed with DLCD staff about this on 12/13/2021, 12/14/2021, and 1/27/2022. The latest
email from DLCD indicated that the edits requested were doable and were included as edits to the draft
as of January. However, the changes are not addressed in the latest public hearings draft of the rules.
Our recommended changes would allow, but not require, the Central Lane local governments to use the
policies, strategies, analysis, and assumptions that were already developed in the 2015 Central Lane
Regional Scenario Final Report. This would leave in the references to OAR 660-044-0110(9) and (10) that
require adoption of performance measures and methodologies, so that it is clear these are the only
Attachment 1, Page 43 of 52 43
work required to be added to the 2015 work for a complete land use and transportation scenario in our
region. We believe this was the intent of the draft rules, but that they have not been updated yet to
reflect the intent.
Clarify that Work Program Does not require duplicative work: While subsection (2)(b)(B) states that
Central Lane local governments do not need to redo prior work on the preferred scenario, there is no
flexibility provided for the work plan elements under OAR 660-044-0100.
Recommendation:
We appreciate the change in the May 19 hearing rules to extend the Regional Scenario Planning work
program deadline to July 1, 2023. We have reviewed DLCD's draft implementation schedule for these
rules, and guidance needed to implement the Regional Scenario Planning work and the Division 12 rules
will not be completed until the end of 2023. We request that DLCD move up the schedule for completing
guidance related to CFA Implementation and the Analysis Procedure Manual to the end of 2022, as well
as any other guidance documents needed to set timelines for CFEC implementation. Like comments
submitted to LCDC from the City of Salem, we anticipate that we will need to rely on clarifications and
requirements stated in the implementation guidance to develop a well-informed work plan and
alternative dates. Alternatively, the rules could extent the work program deadline to 6 -months after
publication of the DLCD guidance documents.
Revise (2)(b)(B) of this section to remove specific reference to OAR 660-044-0110(3), (7), and (8). It would
read, "Are required to produce only the additional elements that build on the preferred scenario to
prepare a complete transportation and land use scenario plan, as prOvided ;r OAR 660 044 0 10(3) and
titin 0414 0 10(7) thre glh which are OAR 660-044-0110(9) and 660-044-0110(10)."
Add subsection (2)(b)(C) stating, "Are required to submit only the elements of the work plan in OAR 660-
044-0100 necessary to prepare a complete transportation and land use scenario plan as provided in
subsection (A) and (B)."
When Springfield representatives met with DLCD staff, they indicated this change to (2)(b)(C) was
acceptable and the intent of the rules; however, we have not seen this clarification made in the rules
language. In addition, the 2015 Central Lane scenario plan includes a set of implementation policies as
described in (2)(b)(8)(3), so it is unclear why this rule is cited as a required additional element. If
reference to (3) was removed, we understand that would leave us the flexibility to either consider
changes to these implementation policies or else rely on the original policies stated in the 2015 plan.
Citing to (3) in this rule appears to require Central Lane MPO to revisit or update these policies. We
understood from staff conversations with DLCD staff that this was not the intent.
OAR 660-044-0110 (Land Use and Transportation Scenario Plan Contents)
Clarify Applicable Targets: Subsection (7) requires projection of future greenhouse gas emissions at the
horizon year using the methods required by section 0300, to meet the "targets in OAR 660-044-0025."
Subsection (3) references "policies and strategies to achieve target reductions" listed in OAR 660 -044 -
Attachment 1, Page 44 of 52 44
0025. It is unclear whether the scenario needs to meet the target of the horizon year only, or if all
"targets" in section (2) are to be included.
Recommendation: Clarify that the policies and strategies in (3) and the projections in (7) must meet the
targets up to the "horizon year" and not all targets provided in OAR 660-044-0025, to the extent that
some targets may extend beyond a scenario's horizon year.
The revision provided in the May 19 version of the rules now states that "the applicable target" must
be met. It is unclear if "applicable target" means the end of the planning period, or another year.
Please further clarify this revision to the rules.
Attachment 1, Page 45 of 52 45
ATTACHMENT 1: RULES TO REMOVE/CLARIFY THAT DO NOT SUPPORT CLIMATE AND
EQUITY CHARGE OR ARE TOO PRESCRIPTIVE
The following is a list of proposed rules that do not seem to support the climate and equity charge of the
rulemaking and add unnecessary implementation burdens and costs or they are simply too prescriptive
to be included at the level detail appropriate for state rules. We would encourage DLCD staff to review
the rules again with an eye toward removing requirements that do not directly benefit the climate and
equity goals.
Recommendation:
Remove or clarify the following from the rules:
1. 660-012-0012(3)(g)
o Remove "The commission shall hold a hearing to review the proposed alternative dates
and the director's recommendation."
o There does not seem to be a point in holding a public hearing on the proposed alternative
dates because it's unclear what input the public would provide that would affect the
alternative date schedule. The cost to prepare for a public hearing and the delay in
approval of alternative dates caused holding a public hearing seems needless.
2. 660-012-0060(1)(c)
o Remove the underlined language proposed to be added to the existing TPR rule 0060 at
(1)(c) and keep as originally written: If a local government is evaluating a performance
standard based on projected levels of motor vehicle traffic, then the results must be
based on projected conditions measured at the end of the planning period identified in
the adopted TSP."
o Comment: Adding this new language to 0060 will have the effect of requiring local
governments to show compliance with any adopted multimodal standards throughout
the planning period, rather than the end of the planning period, creating much additional
work for planning staff preparing amendments to functional plans, comprehensive plan
amendments, zoning map amendments, and code amendments, without any clear
purpose for making that change.
3. 660-012-0310(1)(e)(E)
o Remove "The city can demonstrate that at least 70 percent of complete annexation
applications within the last five years have been approved within one year of the date of
complete annexation application."
o Comment: Unnecessary and wasteful staff work that does not reasonably relate to
whether annexation of a specific CFA is feasible.
4. 660-012-0030(2)
o Remove the site-specific references to the exemption in this rule and state merely, "Cities
and counties may allow exemptions to provisions in this rule when conditions would
Attachment 1, Page 46 of 52 46
make those provisions prohibitively costly or impossible to implement. Conditions that
may provide for an exemption include, but are not limited to..."
o Comment: allowing only site-specific exemptions to the rule requirements, rather than
legislatively adopted exemptions for classes of development, requires the City to develop
and implement a site-specific exemption process which needlessly wastes time and
resources if a whole class of exemptions can be developed and adopted legislatively.
5. 660-012-0330(3)(b)
o Remove "No vehicular parking, circulation, access, display, or loading shall be permitted
on-site between buildings and public pedestrian facilities."
o Comment: See our comments in response to this section in the primary comment
document and as illustrated in Attachment 3. In addition, the pedestrian facility
requirements in (3)(a), (c), and (d) should be adequate to ensure high quality pedestrian
access regardless of where vehicular areas are located on a site.
6. 660-012-0330(7)
o Remove "(7) Cities and counties with an urban area over 100,000 in population must have
reasonable land use regulations that allow for development of low -car districts. These
districts must be developed with no -car or low -car streets, where walking or using
mobility devices are the primary methods of travel within the district. Cities and counties
must make provisions for emergency vehicle access and local freight delivery. Low -car
districts must be allowed in locations where residential or mixed-use development is
authorized.
o Comment: This standard seems duplicative of the intent to plan for climate friendly areas.
Given the strong likelihood that the "no -car" or "low -car" areas used to meet this rule
requirement will be the designated CFAs, this section could be removed from the rules
with no to very little overall impact on outcomes. Removing this language would save the
cities work in writing findings to show that the adopted CFAs meet this requirement.
7. 660-012-0340(6)
o Remove "(6) Where applicable, future land use assumptions must allocate growth
assumptions for employment and housing within climate friendly areas as provided in
OAR 660-012-0320 before allocating growth to other parts of the city or county. "
o Comment: Very unclear language that will be confusing to implement and leave cities
open to challenge for how they interpret it. Not clear what purpose being served by this
vague and confusion section of rule.
8. 660-012-0360(2)
o Add language to (2) to clarify that not all items listed under that subsection are
automatically "key destinations": "Key destinations may include, but are not limited to"
o As currently written, the rule could be read that every location where there is one of the
thirteen examples listed is a "key destination," which we understand is not the rules
intent. Clarifying this section will reduce the work to document and discuss each and
every gym, medical or dental clinic, family childcare homes, etc., in Springfield, which is
more detail than should be required to document "key destination."
Attachment 1, Page 47 of 52 47
9. 660-012-0400(4)(e)
o Remove "In providing trees under subsections (a), (b) and (c), the following standards
shall be met. The tree spacing and species planted must be designed maintain a
continuous canopy. Local codes must provide clear and objective standards to achieve
such a canopy. Trees must be planted and maintained to maximize their root health and
chances for survival, including having ample high-quality soil, space for root growth, and
reliable irrigation according to the needs of the species. Trees should be planted in
continuous trenches where possible. The city or county shall have minimum standards for
planting and tree care no lower than 2021 American National Standards Institute A300
standards, and a process to ensure ongoing compliance with tree planting and
maintenance provisions."
o Comment: The ANSI A300 standard includes such detailed tree maintenance items as
proper angles of pruning practices and root care practices. Requiring local governments
to prove to a state agency that they use the industry best standard in the angle of pruning
cuts is the very definition of micro -management of local governments by the State. It is
entirely unclear what the need is for this level of micro -management or what climate -
related problem this mandated standard is intended to solve. To be clear, we do not
oppose best practices for tree care as those items are important to the City of Springfield;
we strongly object, however, to this level of detail being required in state transportation
planning rules.
10. 660-012-0505(2), 660-012-0605(3), and 660-012-0805(2)
o Remove "prior to the year of adoption of the pedestrian system inventory"
o Remove "prior to the year of adoption of the bicycle system inventory"
o Remove "prior to the year of adoption of the street and highway system inventory"
o Comment: remove to simplify the rules and reduce unnecessary implementation burden.
11. 660-012-0510, 0610, 0710 and 0810
o Remove detailed regulations for pedestrian system requirements, bicycle system
requirements, public transportation requirements, and street and highway requirements.
o Comment: The level of detail in regulations should increase from state planning rules, to
local plan policies, to local land use regulations. These rules are at the level of detail of
land use regulations. Removing these requirements from the state rules will allow local
flexibility in how to develop standards to implement the Transporation System Plan in
land use regulations. If desired, DLCD could publish a model code of high-quality
infrastructure standards, which could be coupled with much-needed guidance about how
to develop clear and objective infrastructure standards for housing development.
12. 660-044-0015(2)(b)(B)
o Remove "OAR 660-044-0110(3) and"
o Comment: Clarifies agreed-upon intent between City and DLCD staff that Central Lane
MPO does not need to complete work plan item that have been completed, ensuring
there is no required duplicative work.
Attachment 1, Page 48 of 52 48
ATTACHMENT 2:
0505(1) and 0605(2) as
currently proposed would
likely perpetuate
discriminatory planning and
could be harmful to
underserved populations.
Areas in red have higher than
average populations of at
least one of the following:
• Zero car households
• Households below poverty
eve
• Minority population
concentrations
• Persons with disabilities
• Seniors
• Limited English speaking
ability
Springfield Schools
Springfield School District 19
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ATTACHMENT 3: VISUALS TO ILLUSTRATE DEVELOPMENT BARRIERS IN 660-012-
0330 (Land Use Requirements)
Example 1 - McKenzie Willamette Hospital emergency room area
As written, the rules would require a site-specific exemption to allow the configuration that was
developed where pedestrian and bike access, accessible parking, patient pick up and drop off, and
ambulance access is provided for the hospital's emergency room. Why would you not want to recognize
this need in the explicit rule language, rather than shifting the burden to cities and developers to justify
exemptions?
As shown below in images captured on Google Maps or Google Street View, the site development
provides convenient pedestrian access from both directions on the main fronting street Mohawk Blvd, in
addition to access from the local side streets via I Street, 16th Street, H Street, and G Street. While
pedestrians entering from side streets and from the primary street do cross a vehicle circulation path,
the pedestrian crossings are well marked and convenient. Vehicle access close to the front of the
building is necessary for persons with disabilities accessing the ADA parking or the patient pick up/drop
off area, as well as for ambulances and other medical transport vehicles.
Aerial view of McKenzie Willamette Hospital showing marked crossing and pedestrian access and
circulation from above. The Emergency Room entrance is located in the northwest corner, in the area of
the helicopter landing pad marked with a "+."
Attachment 1, Page 50 of 52 50
Emergency room access between the building and the public sidewalk from Mohawk Blvd, looking north.
= - - -- 'qft
Emergency room accessible parking viewed from drive isle adjacent to Mohawk Blvd, looking south. A
second pedestrian access is provided directly from Mohawk Blvd sidewalk at the end of the drive isle
shown in this photograph.
Emergency room entrance with ADA -accessible pedestrian ramp behind the truck in this picture, across
Mohawk Blvd from the emergency room entrance. This is the only hospital entrance that meets the rules
language in 0330(4)(b) outright with no exemption needed.
Attachment 1, Page 51 of 52 51
Example 2 — Oregon Neurology medical facility
New medical facility at Oregon Neurology located at 1 Hayden Bridge Way in a commercial zoning area
achieves the desired outcome of this rule language as explained by DLCD staff, but it is still at odds with
the actual requirements written in the draft rules. Hayden Bridge Way is the primary frontage in terms
of where pedestrians and cyclists are most likely to approach this building. There is no vehicular area
between the Hayden Bridge Way on the north side or the Game Farm Road on the west side. While this
building was not constructed to provide entrances at these locations, it appears feasible to require it to
meet the objectives for enhanced pedestrian access proposed in 0330(4)(a), (c) and (d).
However, even with direct access from Hayden Bridge Way and Game Farm Road, this configuration
would still not comply with the rule at 0330(4)(b) as written. The requirement for "no vehicular parking,
circulation, access, display, or loading" to all areas that are "between a building and a public pedestrian
facility" would apply on all sides of the development because Laura Street also includes public
pedestrian facilities in the form of sidewalks. All of the parking areas shown below are "between a
building (Oregon Neurology) and a public pedestrian facility (Laura Street)." Indeed, there is no location
on this site shown below, which is surrounded by public sidewalk on all block faces, for any vehicular
areas at all, unless the parking was located in the middle of the building (requiring more costly
development) or a public pedestrian facility dedicated through the middle of the property (which the
City would have to pay for, as an exaction of a private property interest).
Od
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Aerial view of the Oregon Neurology building on Hayden Bridge Way in Springfield, showing parking
configuration in relation to the public pedestrian facilities.
Attachment 1, Page 52 of 52 52