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HomeMy WebLinkAboutMiscellaneous PLANNER 4/27/2004 (2) 1 2. 3 4 5 6 7 8 9 10 11' 12 13 14 15 16 17 . 18 19. .' 20 ' 21 .22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 . . 37 38 39 40 41 42 43 44 45 46 Page 1 . .~ BEFORE THE LAND USE BOARD OF APPEALS OF THE STATE OF OREGON ROBIN JAQUA and JOHN JAQUA, . Petitioners, and LANE COUNTY and 1000 FRlENDS . OF OREGON, Intervenors-Petitioner, YS. CITY OF SPRlNGFIELD; Respondent, and PEACEHEAL TH, Intervenor-Respondent. . LUBA Nos: 2003-072 and 2003-073 COALITION FOR HEALTH OPTIONS IN CENTRAL EUGENE-SPRlNGFIELD, . . ANNE S. HEINSOO, LINDA MAUREEN CHENEY and FRED C. FELTER, Petitioners, and LANE COUNTY and 1000 FRIENDS' OF OREGON, Intervenors-Petitioner, YS. CITY OF SPRINGFIELD, Respondent, and PEACEHEALTH, Intervenor-Respondent. t t-a+ CO?1 r ,1/(1:}D~ Date Received: '--\ J- Planner. J \) .\ 6-( lK'?~ J _.;r_ ,,'=.<:. ~. ~\ . . .:'--,P . D . . . 1 prohibit the city from providing more high-density housing than it may have identified as being needed in the RLI. Hubenthal v. City of Woodburn, 39 Or LUBA 20, 32 (2000). Similarly, while the OAR 660-008-0005(2) definition of "[bJuildable [lJand" states that "land 2 3 4 within the I OO-year floodplain is generally considered unbuildable for purposes of density calculations," there is nothing in Goal 10 that prohibits residential development within f100dplains.25 To summarize, given the surplus of MDR-designated lands that remains after the 5 6 7 8 9 10 11 12 challenged decisions, petitioners' Goal 10 arguments concerning the impact the challenged decisions will have on the type of housing that may in fact be approved in the master plan review process for the 33 acres that will be planned CC and zoned MUC, the 66 MDR- designated acres that will be zoned MS and the remaining MDR-designated acres that will remain zoned MDR provide no basis for reversal or J\and.' . . 1\ 13 14 Petitioners' second assignment of error (CHOICES) and petitioners' fifth assignment of error (Jaqua) are denied. 15 16 17 18 VIII. . GOAL 12 AND THE TRANSPORA nON PLANNING RULE The Transportation Planning Rule (TPR), OAR Chapter 660 Division 12, was adopted by LCDC to implement Goal'12. Among other things, the TPR requires that local governments prepare transportation system plans (TSPs). The.city's TSP, TransPlan, is also 19 a Metro Plan Functional Plan. If an acknowledged comprehensive plan or land use 20 regulation is amended to alter allowed land uses in a way that will "significantly affect a' 21 transportation facility," OAR 660-012-0060(1) identifies a number specific measures that 22 must be considered to ensure that those altered land uses "are consistent with the identified 23 function, capacity, and perfonnance standards (e.g. level of service, volume to capacity " The city's Floodplain Overlay District imposes a numher of limitations designed to protect such housing from flood damage. Page35 .. . . . ration, etc.) of the [transportation] facility.,,26 Accordingly, when amending. an acknowledged 2 comprehensive plan or land .use regulation, a threshold question ~nder the TPR is whether the 3 amendment "significantly affects a transportation facility." OAR 660-012-0060(2) sets out 4 four circumstances in which a plan or land use regulation amendment "significantly affects a 5 . transportation facility." OAR 660-012-0060(2)(d) sets out the circumstance that is relevant 6 here, and it provides that a comprehensive plan or land use regulation amendment will 7 "significantly affect a transportation facility" if it will allow land uses that "[ w ]ould reduce 8 the perfonnance standards of [a transportation] facility below the minimum acceptable level 9 identified in the TSp.,,27 For state facilities those perfonnance standards are expressed as a "OAR 660-012-0060(1) provides: "Amendments to functional plans, acknowledged comprehensive plans, and land use regulations which significantly affect a transportation facility shall assure that allowed land uses are consistent with the identified function, capacity, and performance standards (e.g. level of service, volume to capacity ratio, etc.) of the facility. This shall be accomplished by either: . "(a) Limiting allowed land uses to be consistent with the planned function, capacity, and performance standards of the transportation facility; "(b) Amending the TSP to provide transportatiori facilities adequate to support the proposed land uses consistent with the requirements of this division; "(c) Altering land use designatiollS, densities, or design requirements to reduce demand for automobile travel and meet travel needs through other modes; or "(d) Amending the TSP to modify the planned function, capacity and performance standards, as needed, to accept greater motor vehicle congestion to promote mix"cd use, pedestrian friendly development where multirnodal travel choices are provideii." "OAR 660-012-0060(2) provides: "A plan or land use regulation ari,endment significantly affects a transportation facility if it: "(a) Changes the functional classification of an existing or planned transportation facility; "(b) . Changes standards implementing a functional classification system; "(c) Allows types or levels of land uses which would result in levels of travel or access which are inconsistent with the functional classification of a transportation facility; or Page 36 ......,,- . . . . I volume to capacity (VIe) ratio; for local facilities those perfonnance standards often are 2 expressed as one of five levels of service (LOS), A through F. For most of the state 3 transportation facilities that would be affected by the disputed amendments, the maximum - 4 V/C perfonnance standard is .85; for the affected local facilities, the maximum LOS is D. In 5 other words, a state facility that operates at VlC .86 or higher is failing, and a local facility 6 that operates LOS E or higher is failing. 7 The parties' dispute under this assignment of error is not limited entirely to the 8 meaning of OAR 660-012-0060(2)( d). Another important provision is Oregon Highway Plan 9 (OHP) Action IF,6. The parties agree that OHP Action IF.6 imposes what they characterize 10 as a "nondegradation" performance standard." However, the parties do not agree on what II nondegradation means or how and at what times that nondegradation standard applies. .12 In this case, the transportation impact analysis (TIA) that was prepared by 13 PeaceHealth identified over 50 state and local transportation facilities that will be impacted 14 by the traffic that would be generated by the development that could ultimately be approved IS under the challenged ordinances. The TIA analyzed those impacted transportation facilities 16 under two development scenarios.' 17 18 19 20 ". 'Existing Designation' Scenario - this scenario assumed the current plan designation and MDR zoning for the site and the future-year land- use allocation included in the regional transportation model as used to develop TransPlan. "(d) Would reduce the perfonnance standards of the facility below the minimum acceptable level identified in the TSP." 28 OHP Action IF.6 provides, in peltinent part: "For purposes of evaluating amendments to · · · acknowledged comprehensive plans and land use regulations subject to OAR 660,012-0060, in situations where the [V/C ratio] for a highway segment, intersection or interchange is above the standards [established in the OHP] and transportation improvements are not planned within the planning hodzon to bring. perfonnance to standard, the perfonnance standard is to avoid further degradation. If an .amendment · · · to [an] acknowledged comprehensive plan or land use regulation increases the [V/C ratio] further, it will significantly affect the facility." OHP 79. Page 37 . . . . 1 2 3 4 ". 'Proposed Designation' Scenario - this scenario assumed specific types and levels of development through the 2018 [TransPlan planning] horizon year based on the applicant's intended future uses," Record 90 5 First, the TIA asswlled that 14 TransPlan projects that are included on the 6 "Financially Constrained Roadway Projects map and list" would be constructed some time 7 before the end of the 2018 planning period,29 Record 89-90. Although petitioners in one 8 place suggest that the city is not entitled to rely on proposed transportation facilities or 9 improvements where funding is uncertain, we reject the suggestion. See Craig Realty, 39 Or 10 LUBA at 389-90 (new and improved transportation facilities that are anticipated in an II adopted TSP are considered in detenllining whether plan and land use. regulations will 12 significantly affect transportation facilities under OAR 660-012-0060). Nothing in the TPR 13 requires that a local govenunent provide funding certainty for anticipated transportation 14 facility improvements that are identified in a TSP. To the contrary, both OAR 660-012-0040 " Within the Financially Constrained Project List, TransPlan distinguishes between "Programmed and Unprogrammed projects:" ". Programmed (0-5 years) projects have been identified in a local agency's CIP, the regional TIP, or the STIP. These projects have funding sources identified that will enable them to proceed to project construction. ". Unprogrammed (6-20) projects may not have specific funding sources identified, but are expected-to be funded with reasonable assumptions about expected revenues," Record 4879. TransPlan goes on to explain the significance of a third categofy, "Future Projects,': and the significance of TransPlan funding assumptions generally: "Future (beyond 20 years) projects are not planned for construction during the 20-year planning period. These projects are not part of the financially constrained plan; however, these projects could be implemented earlier if additional funding is identified. "As described in the Capital Investment Action Implementation Process · · ., in all cases, inclusion of a project in a particular phase does not represent a commitment to complete the project during that phase. It is expected that some projects may be accelerated and others postponed due to changing conditions, funding availability, public input, or more detailed study performed during programming and budgeting processes." !d. (Emphasis added.) Page 38 . . . . 1 30 and TransPlan (see n 29). make it clear that transportation facility funding and timing 2 uncertainty is expected. 3 With that assumptionconceming the 14 planned-for transportation facilities that are 4 included in TransPlan, the TIA found that with one exception, all 50 impacted facilities (1) 5 would meet perfoml!,nce 'standards in 2018 under the Proposed Designation scenario, or (2) 6 would not meet perfonnance standards under either the Existing Designation scenario or the 7 Proposed Designation scenario, but that failure would not be any worse in 2018 under the )0 OAR 660-012-0040(1) requires that urban areas with more than 2,500 persons include a transportation financing program in their TSP. The remaining sections of that rule recognize that the timing of and funding for those facilities may be uncertain: "(2) A transportation financing program shall include the items listed in (a)-(d): "(a) A list of pi armed transportation facilities and major improvements; "(b) A general estimate of the timing for plarmed transportation facilities and major improvements; "(c) A determination of rough cost estimates for the transportation facilities and major improvements identified in the TSP[,] u* * * * * "(3) The determination of rough cost estimates is intended to provide an estimate of the fiscal requirements to support the land uses in tlie acknowledged comprehensive. plan and allow jurisdictions to assess the. adequacy of existing and possible alternative funding mechanisms. In addition to including rough cost estimates for each transportation facility and major improvement, the transportation financing plan shall include a discussion of the facility provider's existing funding mechanisms and the ability of these and possible new mechanisms to fund the development of each transportation facility and major improvement These funding mechanisms may also be described in terms of general guidelines or local policies. "(4) Anticipated timing and financing provisions in the transportation financing program are not considered land use decisions as specified in ORS 197.712(2)(e) and, therefore, cannot be the basis of appeal under ORS 197,610(1) and (2) or ORS 197.835(4). "(5) The transportation financing program shall provide for phasing of major improvements to encourage infill and redevelopment of urban lands prior to facilities and improvements which would cause premature development of urbanizable lands or conversion of rural lands to urban uses." Page 39 . . . . I Proposed Designation scenario than it would be under the Existing Designation scenario.31 2 The one exception concerned Pioneer Parkway at Highway 126, which under the Existing 3 Designation scenario is expected to violate the TransPlan perfonnance .standard and will 4 violate that performance standard by a greater margin under the Proposed Designation 5 scenano. 6 The city adopted the above-described TIA findings and, to. address the Pioneer 7 Parkway at Highway 126 facility, imposed a condition of approval that PeaceHealth provide 8 the funding necessary to implement the plmmed facility that will be needed to correct that 9 failure befor~ 2018.32 Based on those findings and the funding condition, the city conclud~d 10 that the challenged ordinances would not reduce the performance of the 50 impacted facilities II "below .the minimum acceptable level identified in the TSP," and for that reason would not 12 . "significantly affect a transportation facility," within the meaning of OAR 660-012-0060(2). 13 . In this case, the city interpreted OAR 660-012-0060(2) to allow it to limit its analysis 14 to comparing the impact of the Proposed Development scenario to the impact of the Proposed IS Development scenario with regard to the perforn1ance of the 50 impacted facilities at the end 16 of the planning period, 2018. If that interpretation and application of OAR 660-012-0060(2) 17 is correct, we do not understand petitioners (Jaqua) to dispute the above-described city 18 analysis. Rather, petitioners argue that the city misinterprets the rule and that the city's 19 analysis is too limited, because it only considers whether the 50 identified facilities will result . 20 in a reduction of perfonnance standards at the end of the plmming 'period, or 2018. 31 This conclusion concerning the Proposeq Designation scenario relies in part on an amendment to ~e GRP which "requires the applicant to submit with the required master plan, a 'Trip Allocation Plan' that caps the maximum number ofvehic1e trips from areas that are zoned MUC or MS to 1,840 at the P. M. Peak Hour." Record 95. Petitioners do not challenge the city's use ofvehic1e trip limits in the trip allocation plan to avoid a finding that the proposed amendments "significantly affect" certain transportation facilities, for purposes of OAR 660-012-0060(2)(d). J2 That facility improvement project is currently a "Future" project. See n 29. The city found that accelerating the expected funding of that facility did not require an amendment to TransPlan, and petitioners do not challenge that finding. Page 40 , o . '. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 . . . According to petitioners, the city must consider the impact of the disputed amendments throughout the planning period: "The City erred in detem1ining that the 50-plus intersections, ramps, roads and other facilities identified in the TIA as 'affected transportation facilities' would not be 'significantly affected' as long as they would not be in failure in 2018, the end of the planning period. That finding is inadequate. The LCDC's [TPR] and Goal 12 require findings and substantial evidence in the whole record showing that affected facilities will not fail or fail sooner during the planning period because of the amendments even if they will be back in compliance at the end of the planning peliod. That evidence and those findings are missing." Petition for Review (Jaqua) 33-34. We understand petitioners'to argue that, in addition to comparing the Proposed Designation scenario and the Existing Designation scenario and answering the questions the city answered concerning the expected performance of impacted facilities in 2018, the city must also consider whether the proposed amendment will cause or accelerate the failure of a transportation facility within the planning period, even if that failure may in fact be temporalY assuming that improvements identified in the TSP are in place by the end of the planning period. If so, we understand petitioners to argue, the city must conclude that the proposed an1endments "significantly affect" those transportation facilities, and proceed to apply one or more of the mitigations described in OAR 660-012-0060(1), for example, by "[l]imiting allowed land. uses to be consistent with the' planned function, capacity, and perfonnance standards o{ the transportation facility," at least until the identified improvements are in fact constlUcted, when and if they are. Petitioners cite no TPR language that expressly supports their position. Petitioners rely on two decisions by this Board, and a Court of Appeals' decision that affinns one of those decisions, for their legal argument U1ider this assignment of error. We describe and set out the relevant parts of those decisions in some length below before considering whether they support petitioners' argument under this assignment of error. In Craig Realty, 39 Or LUBA at 389-90, we considered whether, in detennining' whether a plan amendment would significantly affect transportation facilities, a city may rely Page 41 . . . . . I on the additional transportation facility capacity that would be provided by transportation 2 facility improvements that are currently included in the TSP but have not yet been 3 constructed. We answered that question.in the affinnative and explained: I 4 "[T]he relevant inquiry under OAR 660-012-0060(2) is whether the proposed 5 amendment 'would reduce the level of service of the facility below the 6 minimum acceptable level identified in the TSP.' The city must first 7 detennine whether the city's existing transportation facilities are adequate to 8 handle, throughout the relevant planning period, any additional traffic that the 9 proposed amendment will generate. If the answer to that question is yes, then 10 the proposed amendment will not significantly affect a transportation facility II for the purposes of OAR 660-012-0060(1), and no further analysis is .12 necessary. If the answer is no, then the city must consider whether any new 13 and improved facilities anticipated by the TSP will generate sufficient 14 additional capacity, and will be built or improved on a schedule that will 15 accommodate the additional traffic that will be generated by the proposed 16 amendment. If the answer to that question is yes, then, again, the proposal 17 will not significantly affect a transportation facility. If, however, the answer is 18 no, then the city must adopt one or more of the strategies set out in OAR 660- 19 012-0060(1) to make the proposed amendment consistent with 'the identified 20 function, capacity and level of service of the [affected] facility.''' (Emphases 21 added.) 22 The second LUBA decision that petitioners rely on is ODOT v. City of Klamath Falls, 23 39 Or LUBA 641, aff'd 177 Or App 1,34 P3d 667 (2001). In that case, the applicant- 24 intervenor (Southview) first argued that the "avoid further degradation standard" in.OHP 25 Action IF.6 was invalid, because it was "an impennissible amendment to OAR 660-012- 26 0060(2)(d)."33 39 Or LUBA at 656. Based on that argument, Southview also argued that a 27 plan amendment, which would only further degrade a transportation facility that is already 28 projected to fail before the end of the TSP planning period with or without the proposed plan 29 amendment, could not cause that facility to fail and, therefore, could not "significantly affect 30 that facility" as OAR 660-012-0060(2) defines that concept. Southview cited the Court of 31 Appeals' decision in Dept. of Transportation v. Coos County, 158 Or App 568, 976 P2d 68 32 (1999) in support of its second argument. We rejected both arguments: 33 See n 28. No party in this appeal chalIenges the validity ofOHP Action IF.6. Page 42 . . . . I "[Southview) presents essentially the same arguments we considered and 2 rejected in DLCD v. City of Warrenton[, 37 Or LUBA 933 (2000)), and 3 provides no reason to overrule that decision. Moreover, we disagree with the 4 premises underlying intervenor's causation analysis. It is important to 5 recognize that Dept. of Transportation v. Coos County involved facilities that 6 were already below the applicable standard at the time of the challenged 7 decision, and the proposed amendment therefore could not reduce the facilities 8 below the standard. In that circumstance, [Southview) is correct that the 9 causation element inherent in OAR 660-012-0060(2)( d) cannot be present 10 unless the perfonnance standard itself is one of no further degradation. In the II present case, the affected facilities are currently in compliance with the V IC 12 standard, but are projected to violate the VIC standard sometime during the 13 relevant planning period, as a result of a combination of impacts from the 14 proposed amendment and increases in background traffic. In other words. the 15 proposed amendment will cause these facilities to violate the VIC standard 16 sooner than they otherwise might. If the proposed amendment will cause the 17 facility to violate the VIC standard in year 2010, for example, the causation 18 element in OAR 660-0I2-0060(2)(d) is present, notwithstanding that the 19 facility would fail anyway in the year 2020 due to increased background 20 traffic. We therefore disagree with [Southview's) premise that the validity of 21 the OHP 'avoid further degradation' standard is essential to the causation 22 analysis under OAR 660-012-0060(2)(d), as applied to the facts in this case." 23 39 Or LUBA at 657 (emphasis added). 24 In affinning our decision in ODOT v. City of Klamath Falls, 177 Or App I, 34 P3d 25 667 (2001), the Court of Appeals identified two premises in Southview's argument. The 26 Court of Appeals adopted the following reasoning in rejecting both premises: 27 . "* * * Southview's first premise is that, whether the amendment 'significantly , 28 affects' 'a transportation facility is measured at the end of the planning period, 29 in this case, a 20-year period. * * * Specifically, it contends that, because the 30 intersections could fail at any time during the 20-year planning period, 'it is . 31 impossible to conclude that the proposed amendment, which adds 32 approximately 225 p.m. peak hour trips to the surrounding transportation 33 facilities, will cause the facilities to fail. sooner than they otherwise would.' 34 Southview's second premise is that the effects of the amendment must be the 35 sole cause of the reduction in performance in order for them to 'significantly 36 affect' a transportation facility. In other words, the only decision during the 37 planning period that can be said to 'sigitificantly affect' the transportation 38 facility is the one that takes the VIC ratio over the maximum acceptable level. 39 Southview relies on our decision in Dept. of Transportation v. Coos County, 40 * * * for both premises. ' 41 "We conclude that Southview's arguments are not supported by the text and 42 context of the rules. PGE v. Bureau of Labor and Industries, 317 Or 606, 612 43 n 4, 859 P2d 1143 (1993). There is simply nothing in the text and context of Page 43 ",^,.,_...,~.c..,._." ."..;..~- .,-,.;. . . . . , I the rules that can be read to require that the effects of a proposed action may 2 be measured only at the end of a planning period, If that were the case, the 3 provisions of OAR 660-012-0060(1), providing alternative means of ensuring 4 that amendments that significantly affect a facility are consistent with 5 applicable perfonnance standards, would be meaningless, Further, Southview 6 does not cite anything in OAR chapter 660, division 12, the OHP, or any other 7 authority suggesting that OAR 660-012-0060(1) and (2) apply only if the 8 amendment is the sole cause of an immediate increase in the applicable VIC 9 ratio to a point in excess of the proscribed acceptable level. Southview's 10 position would require us to read substantive provisions into LCDC's rule that II ' are not there, As did LUBA, we decline to do so," ld, at 8, 12 None of the above-described decisions dealt with the precise issue that is presented in 13 this appeal, which is whether a plan or land use regulation aniendment that will cause or 14 accelerate a facility performance standard failure at any point during the planning facility 15 "significantly affects" that facility, notwithstanding that under the existing TSP the 16 perfonnance standard failure may be corrected at the end of the planning period, That said, 17 the language in our decision in Craig Realty certainly suggests that the TSPs that are required 18 by the TPR envision a measure of concurrence between transportation needs and the planned 19 facilities that are included in the TSP to meet those needs, Our decision in ODOT v, City of 20 Klamath Falls explicitly finds that a plan amendment that will hasten the failure of a 21 transportation facility that is expected to fail with or without the plan amendment causes that 22 facility to fail and therefore "significantly affects" a: transportation facility within the 23 meaning of OAR 660-012-0060(2). The Court of Appeals decision ODOT v. 'City of 24 Klamath Falls is even more explicit and direct in rejecting the argument presented in that 25 ,case that the exclusive focus should be on the perfonnance of transportation facilities at the 26 end of the planning period. While petitioners' argument under this assignment of error 27 requires that we extend the reasoning in those cases to apply to the question presented in this 28 appeal, neither the city nor PeaceHealth offers any compelling practical or Goal 12-based or 29 TPR-based argument why that reasoning should not be extended. 30 As the concurrence correctly notes, OAR 660-012-0060(1) is ambiguous or, at least, 31' nonspecific with respect to precisely how local governments should go about detennining Page 44 . . . . whether a proposed amendment "significantly affects" a transportation facility within the 2 meaning of OAR 660-012-0060(2)(d)34 The above cases have to some extent provided a 3 framework for conducting that detennination. The above cases do not directly resolve the 4 issue before us, which is whether OAR 660-012-0060 is concerned with amendments that 5 may cause temporary failure in one or more transportation facilities. The nonspecific text of 6 OAR 660-012-0060 does little to resolve that issue one way or the other. However, for the 7 ,following reasons we believe that answering that question in the affinnative is more 8 consistent with the above cases, with the text and context of OAR 660-012-0060, and with 9 what we understand to be the purpose of that rule, than answering that question in the 10 negative. 11 The basic commandment of OAR 660-012-0060 is that plan and land use regulation 12 amendments "shall assure that allowed land uses are consistent with the identified function, 13 capacity, and perfonnance standards" of transportation facilities. OAR 660-012-0060(1) 14 (emphasis added). OAR 660-012-0060(1) is written i!l the present tense. If the mle drafters 15 had intended to require only that uses allowed by an amendment "will be" consistent with the .16 function, capacity and perfonnance standards of affected transportation facilities'at the end of 17 the planning period, that intent certainly could have been more plainly expressed. Reading 18 the rule to be unconcerned with a temporary, but potentially long-lasting facility failure 19 caused by uses allowed by an amendment does little to "assure" that allowed land uses "are" 20 consistent with the identified function, etc. of that facility. 21 It is true, as the concurrence notes, that the standards applicable to development of a 22 TSP do ,not require local governments to identify funding for planned transportation 34 Actually, OAR 660-012-0060(5), added to the rule in 1998, now provides some guidance to local governments, by clarifying that "[i]n deternlining whether .proposed land uses would affect or be consistent with planned transportation facilities as provided in [OAR 660-012-0060(1) and (2)], local governments shall give full credit for potential reduction in vehicle trips for uses located in mixed-use, pedestrian-friendly centers * * *[.]" f\r Page 45 . . . . improvements or to provide a particular schedule for those improvements. However, that is 2 not surprising, given the purpose of and limitations inherent in a TSP. In contrast to new 3 amendments and new allowed uses governed by OAR 660-012-0060, development of a TSP 4 necessarily addresses uses (and associated traffic impacts) that are already allowed by 5 acknowledged plan and land use regulations. Development of a TSP is intended in part to 6 require local govermnents to evaluate whether the local transportation system can adequately 7 accommodate such already allowed uses within the planning horizon and, if not, take steps to 8 identify needed transportation improvements. The TPR does not go further and require.that a 9 TSP identify particular funding sources" or assure that funding for improvements needed to 10 accommodate uses already allowed by the acknowledged plan or code will actually be II" constructed, presumably because such a requirement would be a fiscal impracticability. The 12 funding and hence the timing of future transportation projects is almost always uncertain. 13 OAR 660-012-0060 serves a different purpose, in our view, and thus the purpose and 14 limitations inherent in a TSP shed little light on what OAR 660-012-0060 requires in the 15 context of approving amendments that allow uses (and" associated traffic impacts) not 16 anticipated by the TSP. We believe that the TSP standards are intended in relevant part to 17 cOI7-ect historic patterns of decision-making whereby some local governments may have 18 allowed uses in the acknowledged plan and code without adequately considering whether the 19 transportation system can accommodate those uses. OAR 660-012-0060 serves a different, 20 but complementary purpose, to prevent local govermnents from engaging in that pattern of 21 decision-making when choosing whether to amend the plan or code to allow new uses not 22 provided for in the plan and code, or anticipated in the TSP. The TSP may be unconcerned 23 with temporary failures of transportation facilities caused by already allowed uses, because 24 there may be little the local govermnent can do to address such temporary failures. But it 25 does not follow that OAR 660-012-0060 is also unconcerned with temporary facility failures, " Page 46 . . . . 1 or that its regulatory concems are confined to those that animate the standards for developing 2 a TSP. 3 There are additional textual and policy reasons to understand OAR 660-012-0060 to 4 be concemed with amendments that allow uses that cause temporary facility failures. First, it 5 . is something of a polite fiction to assume that all improvements identified in the TSP, at least 6 those that are not "committed transportation facilities" with approved funding within the 7 . meaning of OAR 660-012-0005(5), will in fact be constructed by the end of the planning 8 period. They may indeed be funded and constructed by the end of the planning period, but 9 then again they may not. Reading OAR 660-012-0060 to be unconcemed with "temporary" 10 facility failures during the planning period, as the city does, ignores the fact that the 11. "temporary" period of failure caused by the amendment may extend well beyond the 12 planning period. Even if it is assumed as a matter of law that identified but unfunded 13 . transportation improvements will be in place by the end of the planning period, in particular 14 circumstances there may be a lengthy period of temporary failure caused by the amendments. 15 To conclude that OAR 660-012-0060 is unconcemed with such potentially lengthy periods of 16 failure seems inconsistent with the rule's prime directive: to assure that allowed uses are 17 consistent with the function, capacity, etc. of transportation facilities. 18 Further, we note that OAR 660-012-0060(1) provides a set of flexible tools .that local 19 govemments can and indeed must use to "assure" allowed uses are consistent with the 20 function, capacity and perfonnance standards of transportation facilities. Most if not all of 21 those tools would seem to work well to mitigate "temporary" failures caused by amendments 22 and to assure that such amendments do not contribute to permanent failures. For example, 23 the local government might choose to limit allowed uses to be consistent with the planned 24 function, capacity and.perfonnance standards of the facility. It might choose to amend the 25 TSP to provide transportation facilities adequate to support the proposed land uses. It might 26 choose to alter land use designations, densities or design requirements to reduce demand for Page 47 . . . . automobile travel. Or it might choose to amend the TSP to modify the planned function, 2 capacity and perfonnance standards of the facility to accept greater motor vehicle congestion, 3 where multimodal travel choices are provided. Under the city's view of OAR 660-012-0060, 4 however, a local government will never consider applying such mitigations prior to 5 approving uses that will cause a transportation facility to fail, because under the city's 6' interpretation amendments' that cause "temporary" facility failures do not and cannot 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 "significantly affect" a transportation facility within the meaning of OAR 660-012- 0060(2)( d). For the foregoing reasons, we conclude that the city's interpretation of OAR 660-012- 0060 is inconsistent with the reasoning in the above-cited cases, with the rule's text and context, and with the purpose of the rule as we understand it. Petitioners' sixth assigmnent of error (Jaqua) is sustained. IX. SEVENTH ASSIGNMENT OF ERROR (JAQUA) Petitioners' (Jaqua) attack a number of individual amendments that the challenged ordinances adopt. We address those challenges below. A. Gateway Plan Map Amendment Petitioners point out that "Ordinance 6051 defers but authorizes a [GRP] map change of 'up to 33 acres'from [MDR] * * * to [eC] with * * * [MUC] connnercial zoning." Petition for Review (Jaqua) 38-39. Petitioners argue "[t]hese changes are erroneous an ineffective for the same reasons that the Metro Plan Diagram amendments are erroneous.". Id. at 39. We agree with PeaceHealth that this subassigmnent of error IS insufficiently developed to provide an independent basis for reversal or remand. B. GRP Text Amendments Petitioners identify a number of new and amended GRP provisions, and argue that those amendments violate various provisions and in doing' so incorporate arguments Page 48 . . / . . 1 presented elsewhere in the petition for review, frequently without specifically identifying the 2 referenced argument.35 3 The amendments to GRP Residential Element Goal 2, G'RP Residential Element 4 Policy 12.0 and GRP Residential Implementation Action 12.1 were adopted in part to allow 5 33 acres of the 180 GRP MDR planned and zoned acres to be designated CC on the Metro 6 Plan and GRP maps and zoned MUC. We have already sustained petitioners' third 7 assignment of error (CHOICES) that challenges that aspect of the challenged ordinances 8 under Goal 9. Petitioners' arguments under these subassignment of error provide no 9 additional basis for reversal or remand. 10 With regard to amendedGRP Residential Element Action 1.4, petitioners contend 11 that the amendment may pennit development that would not have been allowed without the' , 12 amendment and thereby violate Metro Plan policies that protect the river corridors. 13 PeaceHealth identifies findings that address the only Metro Plan river corridor protection 14 policy that petitioners specifically cite, and states that this challenge should be denied 15 because petitioners neither acknowledge nor challenge those findings. We agree.36 16, With regard to new GRP Residential Element Implementation Action 12.6, 17 petitioners contend that new GRP provision will allow conversion of up to 99 acres of the 18 180 acre MDR-designated area to commercial and hospital use and thus violate Goal 10 and 19 Metro Plan provisions that were adopted to implement Goal 10. Petitioners' arguments here 20 add nothing the arguments that they presented in their assignment of error under Goal 10. 21 We reject t~em here for the same reason we rejected them there. 35 These include amendments to GRP Residential Element Goal 2, GRP Residential Element Policy 12.0, GRP Residential Implementation Action 12.1, GRP Residential Element Action 12.4, new GRP Residential Element Implementation Action 12.6, and new GRP Residential Element Implementation Action 13.7. 36 Petitioners also fault the city for deleting the prior 4,000 square foot maximum on any single NC use. However, petitioners cite no legal requirement that is violated by removing that limitation. Page 49 . . . . Finally, petitioners challenge new GRP Residential Element Implementation Action 2 13.7. Petitioners contend that this change incorporates measures that are inadequate to 3 satisfy the TPR and are inconsistent with lands that are planned and zoned to satisfy Goal 10 4 housing requirements. Petitioners' arguments here provide no additional TPR-related basis 5 for reversal or remand. Petitioner's Goal 10 argument fails because the city is relying on the 6 Metro Plan surplus ofMDR-designated lands to ensure continuing compliance with Goal 10 7 and is not relying on residential development on the MUC zoned 33 acres or the MS zoned 8 66 acres ofland that remain designated MDR on the GRP and Metro Plan. 9 Petitioners' (Jaqua) seventh assignment of error is denied. 10 Ordinances 6050 and 6051 are remanded. II Holstun, Board Member, concurring. 12 I do not agree with the majority's resolution of petitioners' sixth assignment of error 13 (Jaqua). I understand the majority's resolution of that assigmnent of error to require 14 additional city findings in two circumstances before the city can conclude that the 15 amendments adopted by the challenged ordinances will not significantly affect transportation 16 facilities that will be impacted by the developlnent that is made possible by the challenged 17 ordinances. 18 In the first circumstance, new or improved transportation facilities are already 19 planned-for in the TSP (TransPlan) and are expected to result in an impacted facility 20 operating in compliance within the applicable performance standard at the end of the 21 planning period (2018). In that circumstance, the majority concludes that it is not sufficient 22' for the city to find that a plan amendment will not generate sufficient additional traffic to 23 cause the affected facility to violate the applicable perfonnance standard in 2018.37 37 The maJonty decision effectively requires the city to determine whether, without the disputed amendments, the expected new and improved facilities in the TSP will be constructed in time to prevent an impacted facility from violating the applicable performance standard. If they are expected to be cnnstructed in time to avoid failure, tile city must find that the amendments will not generate additional traffic that may cause Page 50 . . . . In the second circumstance,. an affected facility is already expected to operate in 2 violation of the applicable perfonnance standard in 2018. In that circumstance, it is not 3 sufficient for the city to find that the disputed amendments will not worsen the perfonnance 4 standard failure that is already expected. for 2018 at the affected facility under the existing 5 comprehensive plan and land use regulations.38 6 I concede that there is language in our decisions in Craig Realty and ODOT v. City of 7 Klamath Falls and in the Court of Appeals' decision in ODOT v. City of Klamath Falls that 8 can be read to lend indirect support for the majority's resolution of petitioner's sixth 9 assignment of error (Jaqua). I also concede that there could be sound planning or public 10 policy reasons that might support requiring an applicant for a plan or land use regulation 11 amendment to conduct any additional study that might be required to support the 12 demonstration that is required under the majority's resolution of that assignment of error, 13 before the city can find that a plan or land .use regulation amendment will not significantly 14 affect a transportation facility. However, I believe the majority errs in doing so, for two 15 reasons. 16 First, viewed in context with what the TPR requires of cities when they initially 17 prepare a TSP, a requirement that an applicant for a plan or land use regulation amendment 18 establish that the amendment will not lead to facility failure or degradation at any point in the 19 planning period, or mitigate that failure under OAR 660-012-0060(1), lacks textual support 20 in the TPR rule. the affected facility to fail plior to construction of the new or improved facilities. [(they will not be constructed in time to avoid failure of the facility during the planning period, the plan amendments must not accelerate the date the facility would fail under the existing plan and land use regulations. Whatever the case, these findings are required, notwithstanding that planned improvements that are already included in the TSP are expected to Cause the affected facility to meet the applicable perfOlmance standard at the end of the planning period. l8 The city must also fmd that the disputed amendments will not hasten the date the affected facility will fail. Page 51 . .