I.

Standing of Petitioners 2
II. Statement of the Case 2
A. Nature of the Land Use Decision and Relief Sought 2
B. Summary of Arguments 2
C. Summary of Material Facts 4
III. LUBAs Jurisdiction 7
IV. Assignments of Error 8
1. Assignment of Error 1 8
2. Assignment of Error 2 12
3. Assignment of Error 3 24
4. Assignment of Error 4 45
5. Assignment of Error 5 55
6. Assignment of Error 6 57
V. Conclusion 59
Appendices (no. of pages incl.)
A. Shared Appendix A, Vol 1 and 2 (Separately bound and submitted) n/a
B. Map 1 pg.
C. Excerpts: LCDC Acknowledgement Order 10-001795, 11/2/2010 4 pp.
D. Memorandum to LCDC, 4/20/2010 6 pp.
E. Excerpts: Litman, Generated Traffic and Induced Travel, 1998-2017 4 pp.
F. Excerpts: Salem TSP, TSM Element, 2016 4 pp.
G. Excerpts: OHP Mobility Standards and Major Improvements Policy 10 pp.
H. Excerpts: Salem TSP, Street Element, 2016 6 pp.
I. Excerpts: Regional Transportation System Plan, SKATS 2015-2035 8 pp.

1
1 I. STANDING OF PETITIONERS

2 Petitioners have standing to bring this action under ORS 197.830(2). All

3 petitioners appeared before respondent on October 12, 2016. R. 3395-3432, 3444,

4 3450, 3478, 3493, 4156, 4157. Petitioners filed a Notice of Intent to Appeal on

5 December 30, 2016.

6 II. STATEMENT OF THE CASE.

7 A. Nature of the Land Use Decision and Relief Sought

8 Petitioners challenge Respondents Ordinance No. 14-16, notice of which was

9 mailed to interested parties on December 9, 2016, and which amended the Salem-

10 Keizer Urban Growth Boundary (UGB), Salem Area Comprehensive Plan, Salem

11 Transportation System Plan (TSP), and took an exception to the Statewide Planning

12 Goal 15 (Willamette Greenway). The ordinance supports a new Willamette River bridge

13 and ancillary transportation facilities. Petitioners and Intervenor-Petitioner have filed one

14 shared copy of the ordinance (App. A). Petitioners ask LUBA to remand the decision.

15 B. Summary of Arguments

16 1. Respondent's decision fails to comply with OAR 660-024 and the

17 Transportation Planning Rule (TPR).

2
1 1a. Respondent erred in concluding OAR 660-012-0070 did not apply to

2 its decision.

3 1b. Respondents decision to expand its UGB violated OAR 660-024 and

4 the TPR because Respondent is not in compliance with TPR requirements to

5 reduce reliance on the automobile set forth in OAR 660-012-0035.

6 2. Respondents decision lacks substantial evidence sufficient to establish a need

7 for the transportation project as required by Goal 14, OAR 660 division 24 and OAR

8 660-012-0070 and 660-012-0035.

9 2a. Respondent based the UGB on a population forecast other than the

10 one mandated by OAR 660-024-0040(1).

11 2b. Respondent calculated transportation needs that are inconsistent with

12 Goal 12 and Division 12 requirements to reduce reliance on the automobile.

13 2c. Respondents future transportation need estimates are flawed

14 because the models Respondent used are inaccurate and overestimate future

15 traffic volumes.

16 3. Respondents decision lacks substantial evidence in the record sufficient to

17 show that, as required by OAR 660-24-0050, alternatives not requiring UGB expansion,

18 including Alternative 2A, cannot reasonably accommodate the anticipated transportation

19 need.

3
1 3a. Respondent failed to provide substantial evidence to show that factors

2 used to evaluate whether alternatives reasonably accommodate transportation

3 needs are necessary or essential characteristics to meeting transportation needs.

4 3b. There is not substantial evidence to demonstrate that non-expansion

5 alternatives other than, or in addition to, Alternative 2A were evaluated.

6 4. Respondent failed to provide substantial evidence that the amendments to

7 Respondents TSP comply with the Oregon Highway Plan (Policy 1G and the OHP

8 Mobility Standards, Policy 1F), as required by OAR 660-012-0060.

9 5. Respondent failed to comply with OAR 660-012-0060(2) when it amended its

10 TSP to close the Rosemont Avenue offramp.

11 6. Respondent did not apply comprehensive plan and zoning designations to the

12 land incorporated into the UGB, contrary to requirements of Goal 14 and OAR 660-024-

13 0050(6) and (7) and Division 24.

14 C. Summary of Material Facts

15 The Willamette River flows between two broad flood plains extending along the

16 river around Salem, where the river channel narrows and forms an hourglass shape.

17 The three existing Salem bridges all cross the Willamette at that narrows: a former

18 railroad bridge and two existing spans that form a highway couplet (State Highway 22)

19 that connects downtown Salem and West Salem. R. 27, 4957-4962; App. B.
4
1 Westbound traffic crosses the Marion Street Bridge from downtown Salem to

2 Wallace Road and Edgewater Streets in West Salem. Eastbound traffic crosses the

3 Center Street Bridge, then (a) to a north side exit ramp to Front Street, connecting to the

4 Salem Parkway and through north Salem to Interstate 5; (b) to a southern bridge

5 offramp taking State Highway 22 through Salem along the Riverfront; or (c) straight into

6 downtown Salem. R. 8076. The bridges and associated ramps are often congested

7 during weekday morning and evening peak travel periods, with congestion extending

8 back onto highway and local street systems on both sides of the river. R. 34-35.

9 Due to this congestion and population growth projections, local transportation

10 planners have long considered ways to raise capacity of the existing bridges or provide

11 another crossing. R. 42. The unique geography of the Salem area makes locating a new

12 bridge corridor problematic.

13 In 2006, with FHWA concurrence, Respondent and ODOT began the Salem

14 River Crossing Project, an environmental impact study (EIS), to consider how to

15 improve mobility and safety for people and freight for local, regional, and through travel

16 across the Willamette River in the Salem metropolitan area while alleviating congestion

17 on the Center Street and Marion Street bridges and on the connecting highway and

18 arterial street systems. R. 8120-8121. In April 2012, Respondent issued the Draft EIS

19 (DEIS); it analyzed nine alternatives in detail, including no-build. Seven of the other

5
1 eight alternatives involved new bridge spans; the other one (Alternative 2A) considered

2 improvements to the existing highway bridge couplet. R.8072-8073.

3 After various public meetings and review by a Citizens Task Force, an Oversight

4 Committee recommended DEIS Alternative 4D to Respondent. R. 77, 8093. Respondent

5 rejected Alternative 4D because of its significant environmental impacts, instead creating

6 a new alternative, dubbed the Salem Alternative. R. 77-78. Findings trace the evolution

7 of Alternative 4D into the Preferred Alternative (PA):

8 The Salem Alternative also seeks to minimize potential negative impacts by limiting
9 the size of the bridge (4 lanes instead of 6 lanes) and the amount of elevated
10 structure on both sides of the river. Following refinements to the Salem Alternative,
11 the Oversight Team and partner jurisdictions endorsed the alternative recommended
12 by the City of Salem as the Preferred Alternative (see Figure 1) for the Final EIS
13 (FEIS). . . . Because the Preferred Alternative included important refinements and
14 differences from any of the alternatives evaluated in the DEIS, additional analysis of
15 the Preferred Alternative has been prepared for the FEIS. R. 78.
16
17 Part of the PA corridor in Polk County crosses EFU-zoned land outside the

18 Salem UGB. R. 17, 9587-9590. Respondents ordinance expands its UGB to include this

19 land for the PA; Respondent also adopted a Willamette Greenway exception to allow

20 construction of the new PA bridge and related transportation improvements within the

21 Greenway Overlay Zone. Along with the UGB amendment, Respondent moved to

22 amend its TSP and Plan map to authorize the new bridge, highway, and various related

23 improvements as a legislative procedure governed by SRC 300.110 and the Regional

24 Agreement. App. A.

6
1 For a Class I project such as this, the State Agency Coordination Rule, OAR 731-

2 015-075, dictates that all required land use approvals must be obtained before preparing

3 the final EIS. R. 14. Expanding Respondents UGB is a regional planning action

4 governed by agreement between Respondent, the City of Keizer, and Marion and Polk

5 Counties. R. 16. On August 8, 2016, after a public hearing, Respondent adopted

6 resolution 2016-35 to begin pursuing the land use approvals needed for construction of

7 the PA. R. 9581. On September 26, Respondent notified interested parties of a joint

8 public hearing on October 12 before six bodies (Salem and Keizer City Councils, Marion

9 and Polk County Commissions, and Keizer and Polk County Planning Commissions).

10 The public was invited to testify. The hearing record closed on October 19. Under the

11 Salem Area Comprehensive Plan, Respondent may give final approval for major plan

12 amendments affecting the UGB after the other three jurisdictions concur. R. 270-273.

13 After concurrence from the other jurisdictions, Respondent adopted Engrossed

14 Ordinance Bill 14-16 on December 5 and sent notice to LCDC and interested parties on

15 December 9. R. 451. Petitioners timely filed Notice of Intent to Appeal on December 30.

16 III. LUBAs JURISDICTION

17 This is a land use decision and LUBA has jurisdiction under ORS 197.825(1).

18 Respondent is a local government. ORS 197.015(13). The ordinance is a land use

19 decision. ORS 197.015(10). Respondents ordinance applies the Goal 14 UGB

20 amendment and the Goal 15 exception process and amends its TSP.

7
1 IV. ASSIGNMENTS OF ERROR

2 1. Respondent's decision violates OAR 660-024 and the TPR. OAR 660-024-
3 0020(1) directs that all statewide goals and related OARs apply to UGB
4 amendments except for those goals and rules specifically exempted. OAR 660-
5 024-0020(1) specifically exempts neither OAR 660-012-0070 nor 660-012-0035.
6
7 1a. Respondent erred by concluding OAR 660-012-0070 does not apply to its decision.

8 OAR 660-012-0070 requires goal exceptions for certain transportation

9 improvements on rural lands, including major new roadways. The land subject to this

10 UGB amendment is rural land. Respondent claims that an -0070 exception is not

11 required here because, with approval of the UGB amendment, the land in question will

12 become urban or urbanizable land to which -0070 does not apply:

13 [P]rovisions cited in relation to a goal exception in the TPR (OAR 660-012-0070)

14 apply to certain transportation improvements on rural lands. The proposed UGB
15 amendment expands the UGB to include the land where the transportation facilities
16 will be located, thus converting the land from rural to urban and urbanizable land. As
17 a result, exceptions to goals 3, 4, 11, and 14 are not required. R. 285
18
19 Respondent also cites OAR 660-024-0020(1)(a) to claim an exception is not required:

20 (1) All statewide goals and related administrative rules are applicable when
21 establishing or amending a UGB, except as follows: (a) The exceptions process in
22 Goal 2 and OAR chapter 660, division 4, is not applicable unless a local government
23 chooses to take an exception to a particular goal requirement, for example, as
24 provided in OAR 660-004-0010(1); R. 284
25
26 Respondents interpretation is a non sequitur. Respondent may not apply the results of a

27 decision to claim an exemption from the goals and rules that constrain that decision. The

8
1 land Respondent seeks to bring within the UGB is rural land at the time this amendment

2 is proposed; the land can only become urban/urbanizable land by an approved UGB

3 amendment. Division 024 is unambiguous: relevant goals and rules apply when a UGB

4 is being established or amended: (1) All statewide goals and related administrative

5 rules are applicable when establishing or amending a UGB, except as follows: . . .

6 Respondents reliance on the (1)(a) exemption is erroneous because the plain language

7 of OAR 660-024-0020(1)(a) only excuses goal exceptions required by Division 4, not

8 Division 12, which gives requirements for goal exceptions for transportation facilities on

9 rural lands.

10 In 2006, LCDC, after 1000 Friends of Oregon v. Yamhill County, 203 Or App 323

11 (2005), and while adopting Division 024, amended OAR 660-012-0070 to clarify that it

12 sets out the exclusive criteria for approving an exception for a transportation facility on

13 rural land. Respondents failure to adopt a -0070 exception is significant because OAR

14 660-012-0070(6) requires that Respondent use several factors, including cost,

15 operational feasibility, and economic dislocation to determine whether non-exception

16 alternatives can reasonably meet needs. OAR 660-012-0070 requires Respondent to

17 justify and specify a threshold for each factor it uses, but the present decision provides

18 neither factors nor justification for thresholds:

19 One commenter described a number of issues associated with the Thresholds

20 Analysis that was included in early draft of the FEIS Land Use Technical Report.
21 However, that analysis was not included in the Final Technical Report or in the
22 Findings prepared in support of the proposed UGB analysis and was not ultimately
9
1 used to justify the UGB expansion. As a result, much of that testimony is not relevant
2 to the decision. R. 489.
3
4 Careful examination of reasonable alternatives is at the heart of an exception

5 justification. The findings here, while extensive, cannot make up for Respondents

6 fundamental failure to meet its obligation to carefully examine reasonable alternatives.

7 LUBA should remand Respondent's UGB and plan amendments and direct it to develop

8 and adopt a goal exception that complies with OAR 660-012-0070.

9 1b. Respondents decision to expand its UGB violated OAR 660-024 and the TPR
10 because Respondent is not in compliance with TPR requirements to reduce reliance on
11 the automobile set forth in OAR 660-012-0035.
12
13 OAR 660-012-0035(4) requires that TSPs in metropolitan areas implement

14 standards to achieve expanded use of alternative modes and reduce reliance on the

15 automobile. Respondents findings claim that OAR 660-012-0035(4) applies only to:

16 [O]verall updates to a local Transportation System Plan and/or to performance of the

17 transportation system as a whole. They do not apply to specific transportation
18 projects or to targeted amendments to a TSP (as is the case here). As a result,
19 neither of these criteria are applicable to the proposed UGB and TSP amendments
20 in isolation. R. 291.
21
22 There is no basis to support the novel proposition that OAR 660-012-0035

23 applies only to overall planning, as that directly contradicts OAR 660-024-0020(1).

24 OAR 660-012-0035 is not specifically excluded; thus, it applies here. In 2010, LCDC

25 remanded a Bend UGB expansion, in part, because Bend did not comply with -0035:

10
1 The rule clearly states that all goals and rules apply to a UGB amendment, except
2 for the listed exceptions. The listed exception for the TPR is limited to the
3 requirements under OAR 660-012-0060. There is no exception for the metropolitan
4 area planning requirements specified in OAR 66-012-0035. . . . The City is required
5 to comply with OAR 660-012-0035 before it may complete its UGB expansion.1
6
7 Respondent claims it has expanded transportation options, and then implies that

8 these expanded options demonstrate compliance with its approved standards and

9 benchmarks:

10 Salems TSP includes a variety of measures to reduce reliance on the automobile,

11 including policies that support enhanced transit service and transit-supportive land
12 use and design, improved bicycle and pedestrian facilities, policies that support
13 transportation demand management strategies, and transportation system
14 management policies and projects. Taken together, these measures plus the
15 improvements for bicycles, pedestrians, and vehicles that would result from the
16 Preferred Alternative create a transportation system that increases transportation
17 choices. * * * Together these summaries demonstrate that the City has made
18 progress towards improving transportation choices. R. 292.
19
20 These findings are inadequate. They do not address how this TSP amendment is

21 designed to meet Respondents adopted benchmarks and they do not show that the

22 efforts Respondent claims to have taken will be sufficient to meet its adopted

23 benchmarks, both of which are required by OAR 660-012-0035(4). In this case, DLCD

24 noted that,

1 App. C, LCDC Order 10-001795, Nov. 2, 2010. See also, App. D, Memorandum to
LCDC from Bob Cortright and Richard Whitman, DLCD, April 20, 2010.
11
1 [T]he findings generally address whether the TSP amendment would increase
2 transportation choices and reduce reliance on the automobile but do not specifically
3 address the locally adopted standards that must be used to measure progress. The
4 findings list some general ways in which the proposed amendments might have the
5 effect of increasing transportation choices as a secondary or indirect effect, but do
6 not include any findings that the proposal was designed to achieve this outcome.
7 The TSP must be designed to achieve benchmarks. R. 3512.
8
9 LUBA should remand the city's UGB and plan amendments and direct the city to

10 provide evidence that shows that the city is in compliance with OAR 660-012-0035(4).

11 2. Respondents decision lacks substantial evidence sufficient to establish a

12 need for the transportation project as required by Goal 14, OAR 660 division 24
13 and OAR 660-012-0070 and 660-012-0035.
14
15 2a. Respondent used the wrong population forecast as the basis for the UGB expansion.

16 As of March 25, 2015, OAR 660-024-0040(1) requires that UGB expansions must

17 be based on a 20-year population forecast that complies with OAR 660, Division 32:

18 (1) The UGB must be based on the appropriate 20-year population forecast for the
19 urban area as determined under Rules in OAR 660, div 32, and must provide for
20 needed housing, employment and other urban uses such as public facilities, streets
21 and roads, schools, parks and open space over the 20-year planning period
22 consistent with the land need requirements of Goal 14 and this rule. The 20-year
23 need determinations are estimates which, although based on the best available
24 information and methodologies, should not be held to an unreasonably high level of
25 precision.
26
27 The parties agree that Division 32 is applicable. The findings explain:

28 The transportation analysis * * * [used] population forecasts that were developed in

29 compliance with the rules in Division 24 (OAR 660-024-003(4)) that were in effect
30 before March 25, 2015. However, the City must address the rules in place at the time
31 that the UGB amendment is initiated, which is the date that the City provides official
12
1 notice to DLCD of the proposed amendment, not the date that the analysis began.
2 As noted on page 226 of the Findings Report, the City of Salem submitted the Post
3 Acknowledgment Plan Amendment (PAPA) notice to DLCD on September 8, 2016.
4 Therefore, the Division 32 rules are applicable. R. 286-287.
5
6 But instead of using the correct forecast, Respondent based the UGB expansion

7 on the Regional TSP (RTSP) population forecast for 2035: 316,479 people. R. 89. The

8 parties agree that this population forecast does not comply with Division 32. As both

9 Marion County, R. 3518-3533, and 1000 Friends of Oregon, R. 3535-3546, have

10 explained, the method prescribed by OAR 660-032-0040(4) and (8)(d), yields a 2035

11 forecast of only 300,447. The findings concur:

12 The long term growth trend for the older adopted forecast is the 1.2% annual growth
13 rate for the 2010-2030 period. The current population of the planning period must
14 be computed using the instructions in subsection (8)(d) of OAR 660-032-0040. The
15 resulting 2015 UGB population using the rules methodology as amended in 2015 is
16 236,678 people. Extending that forecast to 2035 in a manner consistent with the
17 rules cited above results in a 2035 regional population projection of 300,447 people.
18 R.289.
19
20 Thus, there is no dispute that Respondent failed to base the UGB expansion on

21 the population forecast mandated by OAR 660-024-0040(1). Respondent rationalizes its

22 failure to use the correct forecast four ways. R. 289-290. None of the four offer any basis

23 for ignoring OAR 660-024-0040(1) and the requirement that UGB expansions must be

24 based on forecasts that comply with Division 32.

13
1 First, Respondent argues that it finished most of the traffic modeling and analysis

2 supporting the UGB expansion before adoption of Division 32 and related changes to

3 Division 24, and the forecast used was consistent with the rules then in place.

4 Second, Respondent argues that, because the UGB amendment is for

5 transportation facilities only, and because the bridge project would then be added to the

6 Salem TSP, it would be appropriate to base the expansion on the older forecast in the

7 already-acknowledged Salem TSP. While Respondents preference for its earlier

8 analysis is understandable, major building projects often face changes in regulations;

9 the Legislature decides when rules changes take effect and which, if any, ongoing

10 projects are grandfathered. In this case, the Legislature passed HB 2553 in 2013,

11 authorizing creation of Division 32 and the changes to Division 24; those were adopted

12 in January 2015. Thus, Respondent cannot claim surprise; it had ample notice that

13 population forecasting rules were in flux. Yet Respondent clung to the outdated forecast

14 based on a discarded method, even though the forecast was not adopted into the RTSP

15 until May 24, 2015, and Salems TSP was not amended to incorporate the RTSPs

16 forecast until February 8, 2016, R. 89. The UGB expansion proposal itself was not

17 initiated until September 7, 2016. R. 476. In short, Respondents difficulties are all of its

18 own making. Further, Respondents preference for prior rules is irrelevant to compliance

19 with OAR 660-024-0040(1). Respondent may not base its traffic analysis or, ultimately, a

20 UGB expansion, on a forecast that is not in compliance with the controlling forecasting

14
1 rules. And Respondents choice to adopt a TSP forecast that could not lawfully be used

2 for future planning does not excuse its failure to comply with current rules.

3 For Respondents third attempted rationale for using the admittedly incorrect

4 forecast, Respondent cites OAR 660-024-0040(1): The 20-year need determinations

5 are estimates which . . . should not be held to an unreasonably high level of precision.

6 But the subject of that sentence is plainly the 20-year need determinations for land

7 needed within the UGB, not the population forecast precision. Moreover, the Division 32

8 instructions for selecting the applicable population forecast require no interpretation,

9 discretion, or technical work, nor is there any disagreement among the parties that the

10 correct forecast for the year 2035 is exactly 300,447 people. Respondents choice to

11 ignore the plain language of Division 32 is the issue, not a lack of precision.

12 Finally, Respondent asserts that it would have reached the same result even if it

13 had used the correct population forecast. But the scant evidence in the record does not

14 support that contention. The RTSPs traffic analysis is a sophisticated mathematical

15 model that relies on parcel-level allocation of projected population growth to determine

16 the magnitude and location of traffic increases over the 20-year planning period:

17 The population and employment forecasts developed for the 2035 RTSP used the
18 best available information including acknowledged local comprehensive plans, a
19 parcel-level Buildable Lands Inventory (BLI), building permit information, as well as
20 input from local planning staff. The population and employment forecasts were
21 allocated to a parcel level for use in transportation modeling for the 2035 RTSP.
22 R.89.
23

15
1 The record suggests Respondent was unaware that the RTSPs traffic model was

2 based on an erroneous forecast until 1000 Friends of Oregon and Marion County staff

3 raised the issue on October 11, 2016. R. 3518-3546. Rather than re-run the traffic model

4 to incorporate the correct forecast and ensure that the proposed UGB expansion was

5 sound, engineer David Simmons submitted a three-paragraph memo, citing no evidence

6 but asserting that the correct forecast would have produced the same result. R. 3380.

7 Thus, Simmons simply speculated that the model output would be unchanged despite

8 the changed input of a critical variable. An unsupported statement, even when rendered

9 by an expert, is not substantial evidence. Palmer v. Lane County, 29 Or LUBA 436

10 (1995). The Simmons memo reads, in relevant part:

11 Fundamentally, a 5% difference in the population forecast will not have a substantive

12 influence on the design of the transportation system, nor the resulting traffic
13 performance. It should be noted that a forecasted difference in population will impact
14 the traffic forecast in a non-uniform fashion, depending on the location(s) of
15 population growth in relation to the transportation system and how drivers alter their
16 travel patterns as congestion levels change in the system.
17 For simplicity, we could assume that 5% difference in population has a
18 corresponding 5% impact on the traffic within the project area, which would in most
19 cases be an overstatement of the impact. A 5% change in traffic volume would not
20 have an appreciable influence on design of the street or highway to address the
21 capacity needs and such a difference falls within the level of accuracy of travel
22 forecasting models. R. 3380.
23
24 Respondent wishes to focus on Simmonss unsupported speculation that a 5%

25 difference in the population forecast will not have a substantive influence, but Simmons

26 also noted that population forecast changes will impact the traffic forecast in a non-

16
1 uniform fashion, depending on the location(s) of population growth. As noted earlier, the

2 RTSPs traffic model input is at the level of individual parcels. Respondent expects much

3 more growth in certain areas of the city than in others; thus, population forecast changes

4 would trigger disproportionately larger traffic changes in those areas, effects that cannot

5 be assumed away without analysis. The models predicted 60% increase in West

6 Salems population was a significant factor in the decision to pursue a third bridge in a

7 new corridor rather than the expansion of existing bridges, Alternative 2A:

8 The population of west Salem will grow significantly (by nearly 60%) over the next
9 20 years (see Table 9), and that growth will occur primarily on residential land
10 located 1 to 2 miles north of the existing bridges (see Figure 7). Alternative 2A
11 requires that growth to funnel to the existing sole river crossing, concentrating more
12 traffic along Wallace Road and requiring widening and access restrictions within
13 commercial sections of west Salem. R. 103.
14
15 Simmonss caveat about the non-uniform effect of an altered forecast undercuts

16 his speculation that using the correct population input would not have changed the

17 model output. Further, the fact that Respondent relied on disproportionate West Salem

18 growth to conclude that a third bridge was needed voids the finding that use of the

19 correct Division 32 forecast would have produced the same result as the RTSP forecast.

20 Selected portions of an experts testimony, when cited to support a finding, do not

21 constitute substantial evidence where that finding is undermined by the testimony when

22 taken as a whole, and by other conflicting evidence. Pekarek v. Wallowa County, 33 Or

23 LUBA 225, 229 (1997).

17
1 As a matter of law, OAR 660-024-0040(1) does not permit use of anything other

2 than a Division 32 forecast, regardless of any speculation or even evidence that may

3 exist regarding theoretical alternate outcomes derived from use of other forecasts. UGB

4 expansions must be based on the appropriate 20-year population forecast for the urban

5 area as determined under Rules in OAR 660, div 32, not on any other forecasts. Since

6 Respondent already concedes that the UGB expansion is based on the RTSPs forecast

7 of 316,479 people instead of the correct, Division 32 forecast of 300,447 people, R. 89,

8 the decision is unlawful. Therefore, it must be remanded so Respondent may modify the

9 traffic modeling and UGB need analyses using the correct Division 32 forecast.

10 2b. Transportation needs were not calculated consistent with Goal 12 and Division 12
11 requirements to reduce reliance on the automobile.
12
13 OAR 660-024-0040(7) requires that the determination of transportation needs for

14 a UGB amendment comply with applicable requirements of Goal 12 and Division 12.

15 Division 12 defines transportation needs and sets specific requirements for identifying

16 transportation needs in metropolitan areas. Both require that needs be calculated in a

17 manner consistent with policy direction in Goal 12 to reduce reliance on the automobile.

18 The findings indicate that Respondents UGB expansion is intended to meet

19 transportation needs. The UGB amendment is based on a need for an additional bridge

20 across the Willamette River in the Salem-Keizer region over the 20 year planning

21 horizon (2015-2035). R. 92. However, Respondents findings incorrectly assert that

22 OAR 660-012-0030(4) and 660-012-0035(4) apply not to UGB amendments, but rather
18
1 to overall updates to a local Transportation System Plan and/or to performance of
2 the transportation system as a whole. They do not apply to specific transportation
3 projects or to targeted amendments to a TSP (as is the case here). As a result,
4 neither of these criteria are applicable to the proposed UGB and TSP amendments
5 in isolation. R. 291
6
7 Findings summarize actions that, Respondent claims, demonstrate it has made

8 progress towards improving transportation choices. R. 291-292. Respondent's

9 conclusion that OAR 660-012-0035 does not apply to its determination of transportation

10 needs is incorrect and is directly contracted by OAR 660-024-0040(7).

11 Further, the findings fail to show Respondents calculation of future transportation

12 needs is consistent with its approved standard for reduced reliance on the automobile to

13 implement -0035(4). Again, OAR 660-024-0040 dictates that all goals and rules apply to

14 UGB amendments, except as specifically exempted. OAR 660-012-0030 and OAR 660-

15 012-0035 are not specifically exempted; therefore, they apply to the Respondents

16 decision.2 Thus, Respondents calculation of transportation needs must be based on

17 accomplishment of the requirement to reduce reliance on the automobile, as evaluated

18 in OAR 660-012-0035(4). There is no evidence to show compliance with the standards

19 of -0030(4) and -0035(4). Nor does the record contain findings addressing the adopted

20 benchmarks. Neither does the record provide evidence that estimated transportation

21 needs are consistent with achieving Respondents adopted standards for 2035. The

2 See Assignment of Error 1, App. C, and App. D.

19
1 OAR 660-012-0035(4) standard is not met with a showing of efforts or good intentions.

2 The standard requires that Respondent show it has calculated future transportation

3 needs consistent with attaining its adopted goals for reducing reliance on the

4 automobile; it also requires Respondent to show that the calculation of future needs is

5 consistent with Respondents goals before it plans for a major new bridge, not after.

6 2c. Respondents estimates of future transportation needs are flawed because the
7 models used are inaccurate and overestimate future traffic volumes.
8
9 Respondents findings rely on the regional traffic model to estimate future traffic

10 volumes and congestion levels to demonstrate a need for additional roadway capacity

11 and to evaluate the adequacy of different alternatives to meet that need. R. 7627. The

12 evidence shows that this regional model has significantly overestimated growth in bridge

13 traffic volumes, failed to accurately account for impacts of congestion or added capacity

14 on future travel volumes, and failed to account for the impact of tolling on traffic

15 volumes.3 In 2002, SKATS, the regional transportation agency, forecast that bridge

3 The 2002 Crossing Capacity study indicates tolling existing bridges is possible and
identifies tolling as a pricing strategy to reduce peak period traffic. R. 4877-4878. But
Respondent evaluated tolling only as a potential funding mechanism, although tolling is
the primary funding source identified. R. 4378. The regions transportation planning
manager confirmed that Respondents traffic analysis did not account for the effect that
tolls would have on projected traffic volumes. R. 3432. Experience with toll projects in
Washington State and the evaluation of the proposed Columbia River Crossing show
that imposition of tolls reduces traffic volumes by as much as 30 percent. R. 3431-3432.
20
1 traffic over the existing bridge couplet would increase by 40% to 106,500 ADT in 2015.4

2 But the findings report that bridge crossing volumes have been essentially flat: 2014

3 ADTs were 84,600, 20% less than the SKATS forecast for 2015. R. 34. Neither of the

4 traffic analyses prepared for the project disclose these earlier forecasts or address the

5 model weaknesses that caused such a substantial over-estimate.5 R. 3398-3399. The

6 findings do note that bridge volumes dropped during the 2008-2009 recession (R. 887),

7 but the findings fail to address why volumes grew much more slowly than predicted both

8 before and after the recession, or why actual volumes after the 13 year prediction period

9 are 20% less than forecast.

10 Respondents analysis is flawed and overstates future needs because the

11 regions travel model fails to account for congestion effects, induced demand (additional

12 traffic that would be induced by a new bridge), and the effect of tolling on traffic volumes.

13 Findings cite a comprehensive study by expert Todd Litman that documents that (a)

14 congestion constrains growth in peak period trips; and that (b) ignoring this effect leads

15 to overestimating the severity of future congestion. R. 3243. Testimony also provides

16 additional evidence from Litman's study, which shows that (a) induced traffic demand is

4 Willamette River Crossing Capacity Study, 2002, ES-5, R. 4857.

5 Neither the Engineering Assessment (R. 7620) nor the Final Traffic and
Transportation Technical Report Addendum (R. 5259) report the earlier forecast.

21
1 significant and (b) that induced demand is not properly accounted for by four-step

2 models such as Respondent uses because these models do not incorporate feedback

3 impacts of congestion on travel behavior. The result is that Respondents model

4 overestimates traffic volumes and congestion for the no build alternative while under-

5 estimating traffic volumes and congestion present with a new bridge. R. 3429-3431.

6 Under typical urban conditions, more than half of added capacity is filled within five

7 years of project completion by additional vehicle trips that would not otherwise occur.

8 R. 3429-3431. Findings cite the 2009 LUSDR study, which estimates that a new bridge

9 would result in a 2% increase in total West Salem population. R. 3246. (As a reference,

10 findings say induced development in West Salem from Alternative 2A would be much

11 less or not noticeable. R. 3258.) But there is no evidence that the modeling results were

12 adjusted to account for additional travel from induced development; the findings simply

13 assert that the 2009 study results were considered in the analysis of indirect land use

14 effects. R. 3246. In addition, Litmans study says that induced development is just one

15 cause of induced traffic; other sources include trips diverted from other roadways,

16 discretionary trips that might not have been made without the capacity increase, different

17 residential and employment location choices and so forth. R. 6037. App. E. Respondent

18 failed to address any of these.

19 Consideration of these omissions and defects compel the conclusion that the

20 traffic analysis underlying this UGB expansion is both inaccurate and inadequate to

21 establish that there is a transportation need under -0030 and -0035; nor does it allow
22
1 accurate comparison of the performance of different alternatives. This failure to

2 accurately estimate needs is highly significant because the differences in performance

3 (in increasing capacity and reducing congestion) between the preferred and the rejected

4 alternatives are very slight. For river crossing capacity, findings show the PA will

5 increase peak-hour crossing volumes by 3% to 8% over Alternative 2A.6 Compared to

6 2015, the 2035 regional congestion, in vehicle hours of delay (VHD), will increase by

7 160% with Alternative 2A and by 157% with the PA.7 R. 7631. Respondent's expert

8 advises that differences of 5% or less between modeled results are essentially

9 meaningless: "... a 5% change in traffic volume would not have an appreciable influence

10 on the design of the street or highway to address the capacity needs and such

11 difference falls within the level of accuracy of the travel forecasting models." R. 380.

12 Findings based upon evidence in the record that is undermined or refuted does not

13 constitute substantial evidence sufficient to support findings. Pekarek v. Wallowa

14 County, 33 Or LUBA 225, 229 (1997); ODOT v. Clackamas County 27 Or LUBA 141,

15 146 (1994); DLCD v. Klamath County, 38 Or LUBA 769 (2000). Thus, LUBA should

6 Table 11 shows that the PA will carry 10,300 vehicles in the AM peak and 12,400
in the PM peak in 2035. Alternative 2A carries 300 fewer vehicles in the AM peak - 3%
less - and 900 fewer in the PM peak - 8% less than the PA. R. 105.
7 In 2015, there were 4,600 VHD combined in the morning and afternoon (AM and PM)
peak hours). In 2035, in the No-Build there will be 12,900 VHD compared to 12,000 in
Alternative 2A and 11,800 VHD for the PA. Table 3. R. 7631.
23
1 remand and direct Respondent to comply with OAR 660-012-0030(4) and -0035(4) to

2 accurately forecast transportation needs.

3 3. Respondents decision lacks substantial evidence sufficient to show that

4 alternatives that do not require UGB expansion, including Alternative 2A,
5 cannot reasonably accommodate the anticipated transportation need, as
6 required by OAR 660-24-0050.
7
8 Goal 14 and OAR 660-024-0050(4) require that prior to expanding an urban

9 growth boundary, local governments shall demonstrate that needs cannot reasonably be

10 accommodated on land already inside the urban growth boundary (emphasis added).

11 These impose a mandatory bias against unjustified UGB expansions, requiring that

12 alternatives must be selected wherever they can reasonably accommodate the

13 identified need without UGB expansion. Willamette Oaks LLC v. City of Eugene, 232 Or

14 App 29, 35 (2009). Thus, as a threshold matter, when non-expansion alternatives can

15 reasonably accommodate the need, the analysis stops and alternatives requiring UGB

16 expansion must be rejected. Therefore, where an option not requiring UGB expansion

17 can reasonably accommodate the need, whether other options requiring UGB expansion

18 perform better or best is irrelevant; once the analysis fails to exclude all non-

19 expansion alternatives as means to reasonably accommodate the needs, the decision is

20 made at that threshold. The relevant question is whether higher priority lands can

21 "reasonably accommodate" the identified need, not whether such lands can satisfy that

22 need as well or better than resource lands. Residents of Rosemont v. Metro,

23 38 Or LUBA 199, 234 (2000). To meet this reasonably accommodate requirement,

24
1 local government must show, with substantial evidence, that the factors it relies upon to

2 evaluate or disqualify alternatives as unreasonable are necessary or essential

3 characteristics to meet transportation needs. Applicants must justify any "essential

4 characteristics" where those characteristics have the effect of eliminating the need to

5 consider alternatives, and decisions about "essential characteristics" must be supported

6 by evidence. VinCEP v. Yamhill County, 53 OR LUBA 514, 539 (2007).

7 3a. Respondent failed to provide substantial evidence to show that factors/criteria used
8 to evaluate whether alternatives reasonably accommodate transportation needs are
9 necessary or essential characteristics to meeting transportation needs.
10
11 Findings regarding evaluation of non-expansion alternatives focus on a single

12 option: DEIS Alternative 2A. Respondent lists six factors that it uses to argue that

13 Alternative 2A cannot reasonably meet identified transportation needs:

14 1. Reducing congestion in downtown Salem. Based on analysis of affected

15 intersections, the PA met mobility standards at 3 more targeted downtown intersections

16 than Alternative 2A. R. 104-106.

17 2. Distributing traffic within the transportation system. 2A is determined to be

18 inadequate because it requires growth to funnel to the existing sole river crossing.

19 R. 107-117.

25
1 3. Providing alternate routes for emergency responders. Alternative 2A does not

2 provide another option for emergency vehicles to travel across the river, in the event the

3 existing crossing is not available. R. 118.

4 4. Providing alternate route for regional trips. 2A does not provide an alternate

5 route for regional trips that do not want or need to travel through the downtown. R. 119.

6 5. Enhancing multimodal connectivity. Alternative 2a would require removal of

7 existing bicycle and pedestrian facilities on the Marion and Center St. bridges which

8 would further exacerbate existing multimodal safety and connectivity issues across the

9 river. R. 119.

10 6. Supporting planned land uses in downtown Salem and the Wallace

11 Road/Edgewater area. Traffic from Alternative 2A * * * would tie into the same

12 bridgehead areas where the Salem River Crossing Project is trying to relieve congestion

13 and support adopted land use and urban renewal plans for the bridgehead areas. R.

14 119-120.

15 But, because Respondent has not provided substantial evidence to show that the

16 six factors it chose are necessary or essential characteristics to reasonably meeting

17 transportation needs, Respondent has not demonstrated that Alternative 2A and other

18 non-expansion alternatives cannot reasonably accommodate transportation needs. At

19 least four of the six factors are carefully crafted to suggest that an additional river

20 crossing is a necessary or essential characteristic of a reasonable solution, but there is

26
1 no substantial evidence to support that claim. The net effect of Respondents six factors

2 is the circular, question-begging logic that an alternative can be reasonable only if it

3 provides an additional route or connection. The whole purpose of the alternatives test is

4 to require evaluation using neutral factors, selected in advance, and motivated by the

5 strong imposed bias against UGB expansion to determine whether options other than

6 a new bridge outside the UGB can reasonably meet transportation needs for the safe

7 movement of people and goods. Respondents technique of using its proposed solution

8 expanding the UGB to allow adding another river crossing to downgrade alternatives

9 that do not involve an additional river crossing is improper.8 Further rebuttal of each of

10 the six factors is provided below.

11 1. Reducing congestion in downtown.

12 Respondent relies upon a comparison of bridge capacity and expected

13 congestion levels at selected intersections to support its conclusion that Alternative 2A

14 does not adequately reduce congestion in downtown Salem. R.104-105. But findings

8 Goal 2, Part 11, and OAR 660-014-0040. If a reasons exception * * * can be granted
based on characteristics that are not essential for the use to fulfill an identified policy
objective, and that have the effect of obviating the alternatives analyses required by
Goal 2, Part II, then it becomes quite easy to plan and zone resource lands for uses not
allowed by the applicable goals, and such exceptions would become commonplace. An
approach that would allow exceptions to be easily approved would be inappropriate
under ORS 197.732 because exceptions must be just thatexceptional. VinCEP v.
Yamhill County, 53 OR LUBA 514, 540 (2007), citing 1000 Friends of Oregon v. LCDC,
69 Or App 717, 731 (1984).
27
1 show that, compared to no-build, Alternative 2A and the PA each increase capacity in

2 2035. Alternative 2A allows 6-7% more crossing capacity, while the PA adds 10-16%

3 more. R.105. Comparing performance at seven selected key intersections,

4 Respondent finds that Alternative 2A meets mobility standards at three while the PA

5 meets mobility standards at six. R. 106.

6 Three other points highlight failure of these findings to demonstrate that

7 Alternative 2A does not reasonably address downtown congestion. First, Respondent

8 fails to provide substantial evidence that a particular level of congestion reduction is

9 necessary or essential to meeting downtown transportation needs. Respondent's

10 argument that achieving congestion reduction is important is contradicted by and

11 inconsistent with city policies that acknowledge congestion will inevitably increase

12 dramatically, that the city cannot build its way out, and as a consequence has decided it

13 will tolerate congestion in downtown and at intersections.

14 It is important to note that even if the Salem-Keizer region is able to build all of the
15 projects contained in the Regional Plan ... we will still experience nearly a four-fold
16 increase in the mileage of congested streets during the P.M. Peak travel period by
17 2035 compared to 2009. Thus, we will be unable to build enough capacity into the
18 system to handle all the peak hour traffic demand expected in the coming years.
19 Salem Transportation System Plan, July 2016, p. 3-16, App. E.
20
21 Further, in its policies, Respondent acknowledges that intersection performance

22 standards will not be met and that congestion will be tolerated:

23 In adopting this Preferred Alternative, the City recognizes that some intersections
24 located within the project area will not meet the Citys adopted Level of Service
28
1 standards as included in Street System Element, Policy 2.5. The City supports a
2 greater level of peak hour congestion in order to reduce the physical impact to the
3 surrounding neighborhoods and business districts. R. 311.
4
5 Indeed, the findings expressly reject the use of congestion and intersection performance

6 to define what constitutes an acceptable solution: There is no review standard that

7 requires that the proposed alternative must result in less congestion than the no-build at

8 every affected intersection or at some minimum number of intersections. R. 311. The

9 record also notes that Respondents adopted mobility standards, in its TSP, would not

10 be used as threshold criteria for the Salem River Crossing Project. R. 58. Furthermore,

11 by adopting the PA, which does not meet mobility standards at several intersections,

12 Respondent demonstrates that an option that does not meet mobility standards may,

13 nonetheless, reasonably accommodate transportation needs.

14 Second, evidence is limited to a comparison that shows the PA performs slightly

15 better than Alternative 2A in reducing congestion. However, comparative analysis alone

16 is not sufficient to show that an alternative course of action is unreasonable: [T]he

17 relevant question is whether higher priority exception lands can 'reasonably

18 accommodate' the identified need, not whether such exception lands can satisfy that

19 need as well as or better than resource lands. Residents of Rosemont v. Metro, 38 Or

20 LUBA 199, 237(2000).

29
1 Third, even if congestion reduction had been justified as an important factor,

2 Respondents findings fails to show a significant difference in performance between the

3 PA and Alternative 2A.

4 As for crossing capacity, findings fail to explain why the minor difference in

5 capacity is necessary or essential. Other findings in the record contradict this conclusion

6 and say a 5% difference is insignificant: "[A] 5% change in traffic volume would not have

7 an appreciable influence on the design of the street or highway to address the capacity

8 needs and such difference falls within the level of accuracy of the travel forecasting

9 models." R. 3380. In addition, evidence shows that city traffic models are inaccurate and

10 that a 2002 forecast over-estimated growth in bridge crossing volumes over the last 13

11 years by 14%. (See Assignment of Error #2c.)

12 Finally, although the PA does improve some downtown intersections over no

13 build, these congestion problems move north on Wallace Road and the Salem

14 Parkway, where several intersections perform worse with the PA than with no build in

15 2040. And some intersections perform as well as, and in some cases better under

16 Alternative 2A than the PA. R. 5320-5321, 5346. Differences in projected traffic volumes

17 between Alternative 2A and the PA are slight both increase capacity over no build,

18 and both fail to meet mobility standards at several intersections in the study area. The

19 record provides no evidence to explain why the minor differences in congestion

30
1 reduction at a few intersections between Alternative 2A and the PA are essential to

2 reasonably meet transportation needs.

3 2. Distributing traffic within the transportation system.

4 Respondent claims that another bridge is necessary to distribute traffic

5 throughout the transportation system similar to other communities in the Willamette

6 Valley. R. 107. Nothing in the findings supports or explains why distributing traffic with

7 another bridge is essential or necessary to meeting transportation needs. The only

8 evidence offered in support of this factor is anecdotal information about numbers of

9 bridges in other Willamette Valley communities. R. 107-117. The record is devoid of

10 evidence linking a communitys bridge count to its ability to reasonably meet

11 transportation needs. Further, evidence identifies other communities that opted to forego

12 additional bridges for other actions to address transportation needs. R. 3403.

13 Nor do the findings provide any evidence for a metric to gauge distribution or

14 whether traffic is sufficiently distributed to meet transportation needs. Respondent not

15 only fails to identify a level of congestion or delay that would allow assessment of

16 whether traffic is adequately distributed, the findings fail to address the instances where

17 the evidence is that Alternative 2A will operate as well as, and in some cases better

18 than, the PA (Wallace Road/River Bend Rd, Wallace Rd/Hope Ave. and Wallace Rd/

19 Orchard Heights.) R. 5346. Finally, because the PA includes closure of the Rosemont

20 exit, westbound traffic exiting from Hwy 22 heading to western West Salem will be

31
1 forced onto either Edgewater or Wallace Road, further concentrating traffic on those two

2 arterials. Thus, the PA also fails to distribute traffic. R. 5278.9

3 In sum, Respondents findings fail to explain why distribution of traffic across a

4 larger area is necessary or essential to meeting transportation needs. Even if this factor

5 had been justified, the findings do not first show that Alternative 2A cannot reasonably

6 accommodate the need.

7 3. Providing alternate routes for emergency responders.

8 Findings assert the need for an additional redundant route to provide adequate

9 emergency response if an existing bridge closes or fails. Respondent rejects Alternative

10 2A because it does not provide another option for emergency vehicles to travel across

11 the river (in the event the existing crossing is not available), claiming that Alternative

12 2A does nothing in terms of providing an alternate or redundant route for emergency

13 responders. R. 118.

14 But evidence fails to show that an additional route is necessary to provide

15 adequate emergency response. The "transportation need" to be met is about moving

9 Further distribution of traffic with a new bridge is not necessary to the eventual
expansion of West Salem. A 2012 Land Use Technical Report found that the impact
of a new bridge in the same corridor as the PA would make West Salem marginally
more attractive as a residential location, but the impact would likely be modest. A
new bridge might encourage an increase of less than 2% over a No Build alternative,
and would not increase pressure for UGB expansion in West Salem. R. 8413.
32
1 people, in this case emergency responders. An additional or redundant bridge is just one

2 method of improving emergency access across the river, one of two threshold criteria

3 developed to define project goals and objectives in the DEIS process. R. 57-58.

4 Counting bridges does not address the substance of the issue, whether there is

5 improved cross-river emergency access or whether responders can get across the river

6 in a reasonable amount of time. Evidence that shows other communities manage with a

7 single bridge or have discarded proposals to add an additional bridge refutes the

8 premise that redundancy is a necessary or even a common characteristic. R. 3407.

9 And crossing redundancy fails as a necessary or essential criterion because the

10 findings offer no evidence to show why other measures cannot accommodate

11 emergency responders. R. 3407. Findings discuss three non-expansion options for

12 improving emergency response: temporary conversion of an existing bridge to two-way

13 operation, use of the Union Street rail bridge, and using barrier separated travel lanes on

14 the Marion Street bridge, one of the components of Alternative 2A. R. 118, 1148.

15 Findings acknowledge these actions would increase capacity to address emergency

16 traffic without a UGB expansion. Except for the bare assertion that each option would be

17 complicated to implement, Respondent provides no evidence showing they cannot

18 reasonably meet needs for emergency response. Identifying a constraint or limitation to

19 an alternative is insufficient to establish that the alternative cannot reasonably

20 accommodate the need; instead, findings must be based on evidence to show that

33
1 overcoming the constraint or limitation is cost-prohibitive or otherwise unreasonable.

2 Columbia Riverkeeper v. Columbia County,70 Or LUBA 171,195 (2014).

3 At most, findings inconclusively suggest that an additional bridge might,

4 compared with non-expansion options, do better at improving access for emergency

5 responders if a bridge closes or fails. But Respondent must do more than compare

6 options; Respondent must first show, with evidence, that non-expansion options cannot

7 reasonably meet needs for emergency response. Residents of Rosemont v. Metro,

8 38 Or LUBA 199, 234 (2000).

9 4. Providing an alternate route for regional trips.

10 Findings assert that an additional route for regional trips is needed because The

11 existing transportation system that connects West Salem with the rest of the

12 Salem/Keizer UGB relies on a single motor vehicle crossing with two bridges * ** that

13 funnels all traffic to one point of connectivity over the river* * * creating a bottleneck on

14 each side of the river crossing where intersections slow traffic. Respondent rejects

15 Alternative 2A as unreasonable because it does not provide an alternate route for

16 regional trips that do not want to or need to travel through the downtown core. R. 119.

17 While providing an alternate route for regional trips is indeed a feature of the PA,

18 there is no evidence to show that this feature is essential, necessary, or even

19 necessarily effective in better meeting regional trip needs. That a feature makes a

34
1 proposed use more successful or desirable does not make it essential or necessary.

2 VinCEP v. Yamhill County, 53 Or LUBA 514, 522 (2007).

3 Respondent suggests that slowing along the existing route and at intersections

4 will result in unacceptable levels of delay for regional trips and that this delay can only

5 be solved by providing an additional crossing. But the findings contain no evidence

6 showing that a particular amount of delay must be avoided to reasonably meet regional

7 trip needs or that regional trips will suffer excessive delays under Alternative 2A as

8 opposed to the PA. To the contrary, Respondents policies, cited above, acknowledge

9 that congestion is unavoidable and must be tolerated, and Respondent accepts as

10 reasonable solutions that fail to meet desired intersection performance standards.

11 R. 311. Findings positing that an additional route is essential or necessary are further

12 contradicted by evidence showing very little difference in features and performance of

13 the PA and Alternative 2A. Like 2A, the PA routes traffic through at-grade intersections

14 that, findings assert, "slow" traffic (at Glen Creek, Hope, 5th, Beckett). R. 119. The PA

15 would provide a longer, more circuitous route than the existing route, and thus be less

16 likely to appeal to regional travelers. R. 13, 4957, 5459. Moreover, the PA results in

17 higher levels of congestion and delay at intersections in NE Salem, which will cause

18 additional regional trip delays. R. 5318-19. And the PA will not significantly improve

19 conditions for regional trips because overall traffic congestion in the Salem-Keizer area

20 will be roughly the same with or without the new bridge. R. 7631. So even if Respondent

35
1 had shown this factor to be necessary or essential, Respondent failed to first show that

2 the need cannot be reasonably accommodated without expanding the UGB.

3 5. Enhancing multimodal connectivity.

4 Respondent claims as a primary goal the increase in multi-modal traffic across

5 the river. R. 94. Respondent rejects Alternative 2A because Alternative 2a would

6 require removal of existing bicycle and pedestrian facilities on the Marion and Center St.

7 bridges which would further exacerbate existing multimodal safety and connectivity

8 issues across the river. R. 119. Respondent's rejection errs three times over:

9 First, as a threshold matter, findings fail to show that bike and pedestrian needs

10 would not be met by planned improvements or that an additional connection is

11 necessary or essential to adequately meet bike and pedestrian transportation needs.

12 Indeed, available evidence shows that bike and pedestrian needs related to crossing the

13 river are adequately met by the Union Street Rail Bridge and planned improvements:

14 The conversion of the Union Street railroad Bridge to a pedestrian and bicycle facility ...

15 has greatly enhanced pedestrian/bicycle access across the river in the vicinity of the

16 existing bridges since it was opened in 2009. R. 40. With regard to Alternative 2A:

17 The Union Street Pedestrian Bridge, just north of the Marion Street Bridge, would
18 accommodate bicycle/pedestrian movements near this location * * * Alternative 2A
19 would change the bicycle and pedestrian connections to the Union Street Pedestrian
20 Bridge to meet the transportation needs of these modes." R. 7628.
21

36
1 In 2015, Respondent reported other planned improvements in process:

2 construction of a multiuse pathway in West Salem; funding a $1.5 million bike/pedestrian

3 connection on Union Street, and funding a safe crossing of Commercial Street and

4 planning for a grade-separated bike-ped crossing of Wallace Road. R. 6914-6916. The

5 findings fail to explain why these and other improvements in the TSP would not

6 reasonably meet bike and pedestrian circulation needs. To the contrary, Respondent's

7 2015 report advises that shared use paths will provide an opportunity for newer

8 bicyclists to experience and become comfortable with the Union Street Bridge. This in

9 turn can translate to increased use for commute trips. R. 6915.

10 Second, no evidence supports the assertion that bicycle and pedestrian facilities

11 cannot be provided when the Marion and Center Street Bridges are reconstructed if

12 additional connections are needed; Oregons Bike Bill (ORS 366.514) requires bike

13 and pedestrian facilities be provided when highways are reconstructed.10

14 Third, the record is devoid of evidence showing that the additional connection

15 provided by the PA would be better or more effective at enhancing trip connectivity for

16 pedestrians and cyclists. Findings provide no evidence explaining how a new bridge a

17 mile north of downtown would improve connectivity between areas where people

10 Footpaths and bicycle trails shall be provided wherever a highway, road or

street is being constructed, reconstructed, or relocated. This bill applies to all projects
being proposed by ODOT and by all cities and counties in Oregon. R. 5282.
37
1 actually want to bike and walk. To the contrary, the evidence shows that the PA would

2 provide little benefit for pedestrians and cyclists because the bridge would be a long,

3 out-of-direction route that would not provide a convenient route to likely destinations.

4 R. 3404. Thus, there is no evidence that an additional river crossing is necessary,

5 essential, or even helpful in meeting multi-modal travel needs.

6 6. Support Planned Land Uses in Downtown and West Salem.

7 Respondent rejects Alternative 2A as unreasonable because of increased

8 volume of traffic associated with it: Alternative 2A would tie into the same bridgehead

9 areas where the Salem River Crossing project is trying to relieve congestion and support

10 adopted land use and urban renewal plans for the bridgehead areas. R.120. But

11 Respondents proposed supporting planned land uses factor is vague, unjustified, and

12 inadequately supported. There is no evidence in the record that such a criterion is

13 necessary or essential in meeting transportation needs. To the extent this factor is

14 supported at all, it appears to be based on the premise that slightly higher levels of traffic

15 and congestion in parts of downtown and West Salem under Alternative 2A will

16 unreasonably impede implementation of adopted plans. But evidence in the record fails

17 to support this claim. No evidence is provided to show that higher traffic volumes or

18 congestion or characteristics of Alternative 2A will impede plan implementation. As

19 noted above, Respondent acknowledges that there will be unavoidable, significant

20 increases in congestion and that it has decided congestion will be tolerated. (See

38
1 Reducing Congestion in Downtown above.) Further, on congestion, the Land Use

2 Technical Report notes that, even with a substantial increase in congestion anticipated

3 in the no-build, downtown would remain a major employment center, consistent with

4 Respondents plans and policies. R.3253. The Technical Report also notes that some

5 dispersion of some businesses to other areas due to increased congestion would not be

6 inconsistent with Respondents plans and that an increase in congestion could actually

7 support the Citys vision for downtown. R. 3253. The report notes that congestion

8 causing increased travel time in West Salem is unlikely to be a major factor shaping

9 future land use and that Alternative 2A would reinforce the downtown as a destination.

10 R. 3252. In fact, in West Salem, Alternative 2A could slightly enhance infill development

11 in some areas and slightly inhibit it in others along Wallace Road, and have less

12 negative impact on Edgewater than other build alternatives. R. 3258. Even if additional

13 traffic associated with Alternative 2A is perhaps undesirable, Respondent fails to show

14 that it is unreasonable. Respondent's analysis is comparative only: it shows only that the

15 PA reduces traffic compared to Alternative 2A, but fails to show that avoiding a particular

16 level of traffic or congestion is necessary or essential to achieve implementation of

17 adopted plans. And Respondent ignores evidence showing that the PA would not

18 support implementation of adopted plans. The West Salem Urban Renewal Plan

19 contains objectives to upgrade the existing building stock and promote new quality

20 housing opportunities. R. 120. The PA has a significant negative effect on West Salem

21 housing: The preferred alternative would require approximately 56 acres of land for new
39
1 right-of-way, displacing between 45 and 55 residential units and an estimated 55 to 65

2 businesses R. 6047. And, despite this loss of existing housing, the new bridge will

3 provide only marginal incentive for new housing:

4 The improved connectivity and availability of a new bridge crossing between NE

5 Salem and West Salem would make development of buildable residential lands in
6 the northwestern part of West Salem marginally more attractive when compared to
7 the No Build Alternative. R. 6050.
8
9 Thus, Findings lack substantial evidence that supporting land uses is an essential

10 or necessary characteristic for meeting transportation needs. Moreover, the record

11 evidence does not support the conclusion that Alternative 2A and other improvements

12 cannot reasonably support planned land uses in the Salem area.

13 3b. There is not substantial evidence in the record to demonstrate that non-expansion
14 alternatives other than, or in addition to, Alternative 2A, were evaluated.
15
16 Goal 14 and Division 24 require that Respondent demonstrate that lands within

17 the UGB cannot reasonably accommodate the identified transportation needs. While

18 Division 24 does not describe the range of alternatives that must be considered, Division

19 12 includes detailed guidance for a similar standard in OAR 660-012-0070(4).11 To show

11 Division 24 and the exceptions requirements in Division 04 and Division 12 each

require non-expansion or non-exception alternatives be evaluated to see if they can
reasonably accommodate identified needs. LUBA has concluded that the strong family
resemblance between various rules that use similar terms make cases that interpret the
different rules at least potentially helpful. VinCEP v. Yamhill County, 53 OR LUBA 514,
40
1 non-exception alternatives are unreasonable, Division 12 requires demonstrating that

2 transportation needs cannot reasonably be accommodated through one or a

3 combination of the following measures not requiring an exception: (a) Alternative modes

4 of transportation; (b) Traffic management measures; and (c) Improvements to existing

5 transportation facilities. OAR 660-012-0070(4). DLCD guidance indicates that non-

6 exception alternatives should be refined and revised so that they work as well as

7 possible, and that the process for developing and evaluating alternatives should use an

8 iterative process so that, in assessing non-exception alternatives, Respondent should

9 take care to incorporate reasonable design and mitigation measures that would make

10 non-exception alternatives as workable as possible. R. 3425.

11 But Respondent's analysis considered just one non-expansion alternative: DEIS

12 Alternative 2A. Respondent also assumed an 8% reduction in traffic volume if certain

13 specific Transportation System Management (TSM), Transportation Demand

14 Management (TDM) and transit improvements recommended by a 2010 Alternative

15 Modes Study are implemented.12 R. 59. Evidence in the record identifies a number of

529 (2007). In addition, Division 24 requires that transportation needs must be

calculated consistent with requirements of Goal 12. OAR 660-024-0070(7).
12 Summary of Approach to Transit, TSM, and TDM in the Salem River Crossing
DEIS (07/23/10) The April 2010 Salem River Crossing Alternative Modes Study
includes a variety of project recommendations to decrease single-occupancy travel * * *
If implemented, the projects in the study have the potential to reduce SOV travel * * * by
8 percent or more. R. 2107.
41
1 other non-expansion actions that were not included in Alternative 2A or the Alternative

2 Modes Study and which were not considered or were dismissed. Those include

3 refinements or additions to Alternative 2A that would enable it to perform better in

4 meeting transportation needs. Additional actions identified by petitioners include

5 additional TDM/TSM measures, additional roadway improvements, and tolling.

6 The record identifies a series of TSM/TDM measures that are included in

7 Respondents TSP for future implementation but were omitted from the 2010 Alternative

8 Modes Study, including preparing and implementing a more comprehensive incident

9 management plan; expanding incident response staff and equipment for bridge area; a

10 central signal system upgrade; implementing ITS-Adaptive Signal Timing Project; and

11 dynamic routing of emergency vehicles. R. 3414. Moreover, evidence from

12 Respondents TSP indicate these actions would be effective in reducing congestion and

13 improving emergency response. R. 3409-3412. But the TSP also notes Respondent

14 does not anticipate programming significant capital funds toward these [projects] within

15 the 25-year planning period. R. 3414, Salem TSP, Feb. 2016 p. 4-11, -12. App. F.

16 Respondent updated its TSP to include these projects in 2016, long after the 2010

17 Alternative Modes Study, but Respondent failed to analyze these projects when looking

18 at how TSM/TDM could help meet its transportation needs. Instead, Respondent

19 responds to additional TDM and TSM alternatives by simply pointing back to analysis of

42
1 Alternative 2A and the 2010 Alternative Modes Study alternatives developed as part of

2 the DEIS process through 2012.13

3 Respondent also failed to consider two significant roadway improvements

4 recommended by an earlier Bridgehead Engineering Study that could be added to

5 Alternative 2A, namely a free flow exit ramp from the Marion Street Bridge to Front

6 Street northbound and exclusive double right westbound turn lanes from Commercial

7 Street to the Marion Street Bridge at an estimated cost of $130,000. R. 5080, 5084-86.

8 The free flow exit ramp was the top recommendation of the Bridgehead

9 Engineering Study and would relieve congestion at a critical intersection. R. 5084-5085,

10 3477. Testimony from a practicing professional engineer calls the evaluation of feasible

11 alternatives inadequate and recommends that a free flow ramp should be evaluated,

12 seeing no geometric or operational reason for such a ramp to not function acceptably

13 well into the future. R 3477. Although supplemental findings claim that the Center to

14 Northbound Front Street ramp is part of Alternative 2A (R. 294-295), the findings offer no

13 However, all build alternatives (including the PA and Alternative 2A) assumed a
set of TDM and TSM measures, such as the ones that were evaluated as part of the
Alternative Modes Study prepared concurrently with the EIS process. While aggressive
implementation of these strategies is estimated to result in further reduction in traffic of
8%, that is still not enough to solve the transportation issues identified in the project's
purpose and need statement. R. 294.
43
1 citation to the record showing this, and the Alternative 2A detailed description in the

2 record omits it. R. 8160, 8163.14

3 An exclusive, free right turn from Commercial to the Marion Street Bridge was

4 also part of the design of Alternative 2A. R. 8161, 8163 However, after the DEIS was

5 published, the Engineering Assessment comparing Alternative 2A and the PA evaluated

6 a modified design of 2A that eliminated the free right turn lane. R. 222, 7628.

7 Respondent also failed to evaluate tolling the existing bridges as a potential TDM

8 measure.15 Evidence shows that tolling will greatly reduce crossing volumes.

9 Failure to evaluate these additional actions is significant because, as noted

10 above, the difference in performance between Alternative 2A and the Preferred

11 Alternative is slight and close to the 5% margin of error in respondent's travel model.

12 R. 3380. For example, Respondents traffic analysis estimates the PA will increase

13 crossing volume by just 3% to 8% over Alternative 2A in the AM and PM peak hours,

14 respectively. This is a difference of 300 more vehicles in the AM peak hour and 900

15 vehicles in PM peak hour. R. 105. Thus, even modest improvements in performance of

14 About this ramp, the EIS says only: The fifth travel lane on the bridge would
become a dedicated lane for the northbound exit ramp. The EIS shows no
improvements to northbound Front Street as it intersects with the off ramp. R. 8160.
15 See Footnote 3.
44
1 Alternative 2A that Respondent failed to consider could reverse the results of the

2 analysis.

3 These measures could be implemented within the existing system without

4 requiring expansion of the UGB and at much less cost than a new bridge. Thus,

5 Respondent has failed to demonstrate that a combination of non-exception alternatives

6 and actions cannot reasonably meet Respondents transportation needs. Respondent

7 must evaluate feasible alternatives that are specifically identified in the local proceeding

8 and demonstrate that they cannot reasonably accommodate identified transportation

9 needs. Columbia Riverkeeper v. Columbia County, 70 Or LUBA 171,195 (2014). The

10 record shows that petitioners have identified a series of feasible actions that would be

11 effective in reducing congestion and meeting other identified needs. Respondents

12 reliance on analyses of a narrower set of actions developed during the DEIS process

13 more than five years earlier is not sufficient to meet this obligation, especially given

14 minor differences in performance between expansion and non-expansion alternatives

15 and the acknowledged limitations of Respondent's analysis tools. Therefore, LUBA

16 should remand the decision because it does not demonstrate non-exception alternatives

17 cannot reasonably accommodate the transportation need, as required by Goal 14.

18 4. Respondent failed to provide substantial evidence in the record that the

19 amendments to Respondents TSP comply with the Oregon Highway Plan
20 (OHP), Policy 1G, the Major Improvements Policy and 1F, Mobility Standards,
21 as required by OAR 660-012-0060 (TPR).
22

45
1 Local TSPs must be consistent with relevant parts of the state transportation

2 plan, which includes the Oregon Highway Plan (OHP). OAR 660-012-0015(3). OHP

3 Policies 1G and 1F are applicable to Respondent's decision. R. 190-191. OHP Policy

4 1G, the Major Improvements Policy, affirms the policy of the State of Oregon to

5 maintain highway performance and improve safety by improving system efficiency and

6 management before adding capacity. The OHP prioritizes measures to be used in

7 developing transportation plans. App. G, OHP 86-87. Policy 1G is implemented through

8 Actions 1G.1 and Action 1G.2. Action 1G.1 requires that implementing plans:

9 Implement higher priority measures first unless a lower priority measure is clearly
10 more cost effective or unless it clearly better supports safety, growth management or
11 other livability and economic viability considerations. Plans must document the
12 findings which support using lower priority measures before higher priority measures.
13 App. G, OHP 86.
14
15 The OHP says the verb implement connotes Obligation: This category of terms

16 shows ODOT's intention to ensure the outcome whether through funding, policy

17 enforcement or other means of implementing a policy or objective. OHP, 200.

18 Implement generally means fulfill or execute. OHP, 201. While the OHP does not

19 define cost-effective, Merriam-Webster defines cost-effective as providing good

20 results without costing a lot of money. (Merriam-Webster.com, accessed 4/20/2017)

21 The Background provided for Policy 1G provides guidance for its interpretation:

22 Since road construction is very expensive and funding is very limited, it is unlikely
23 that many new highways will be built in the future. Instead, the emphasis will be on
24 maintaining the current system and improving the efficiency of the highways the

46
1 State already has. The Major Improvements Policy reflects this reality by directing
2 ODOT and local jurisdictions to do everything possible to protect and improve the
3 efficiency of the highway system before adding new highway facilities. OHP p. 86.
4
5 Respondent asserts that Action 1G.1 is met in several ways: First, Respondent

6 refers to a list of improvements to bridges over past decades, R. 46-49, and to findings

7 showing compliance with OAR 660-024-0050(4). R. 101-102, 1146-1148. Next,

8 Respondent points to findings that include a 2015 implementation review of the 2010

9 Alternate Modes Study, which shows Respondent has made progress implementing 16

10 of the 44 actions recommended by the 2010 study. R. 5094, R. 6913-6920. Findings

11 also describe key outcomes of the 2010 study that promise Some of the strategies

12 have been or will be implemented in the near future *** [and] other strategies are being

13 studied. R. 45. Finally, Respondent cites findings in reliance on a memo from an ODOT

14 planner reciting a similar list of past improvements implemented in the bridgehead area

15 and stating that it is ODOT's opinion that the Salem River Crossing project meets the

16 requirements of the OHP Major Improvements Policy and Action 1G.1 R. 2222.

17 But none of these are sufficient to meet the Action 1G.1. The requirement to

18 implement higher priority measures first is not met because the 2010 Alternate Modes

19 Study includes a large number of high priority measures yet to be implemented. Further,

20 Respondent's 2016 TSP lists 22 additional projects and strategies that Respondent

21 supports but that are not scheduled for implementation within the next 25 years. Salem

22 TSP, Table 4-2, p. 4-15, App. F.

47
1 Respondent cannot meet Action 1G.1 by showing some higher priority measures

2 have been made or are planned; compliance requires that higher-priority measures be

3 implemented first unless there is a showing that the planned lower-priority measure, in

4 this case the PA, is clearly more cost effective than available higher-priority measures.

5 And the findings here show that, while some of the identified high-priority measures

6 have been implemented, others are included in adopted plans, most are either omitted

7 from plans or are not scheduled for implementation in the planning period. Moreover, the

8 record is devoid of evidence to show that the PA is clearly more cost effective or

9 clearly better supports other objectives as required by Action 1G.1. Indeed, the higher-

10 priority measures included in the TSP or recommended for implementation by the 2010

11 Alternative Modes Study give evidence that respondent considers them cost-effective

12 and supportive of other objectives. In addition, both the TSP and the 2010 study include

13 evidence which indicates the individual measures are effective and can be accomplished

14 at modest cost, providing good results without costing a lot of money compared to the

15 $425 million Preferred Alternative. R. 79.

16 Nor can Respondent rely on an ODOT staff memo to demonstrate compliance

17 with the Major Improvements Policy or Action 1G.1. The OHP is adopted by the Oregon

18 Transportation Commission (OTC), which is charged with approving implementation

19 programs. ORS 184.618. Only the OTC has authority to determine whether Policy 1G

20 and Action 1G.1 are satisfied, unless that responsibility is delegated. There is no

21 evidence that the OTC delegated authority to determine whether Policy 1G is satisfied.
48
1 This case is distinguishable from that of Friends of Eugene v. City of Eugene, 44

2 Or LUBA 239 (2003), where LUBA determined Policy 1G was satisfied when faced with

3 a very different set of facts. In that case, Eugene had approved a highway corridor

4 outside the city limits, and that highway corridor was in the TSP; the city then approved

5 a slight corridor adjustment to avoid wetlands; the highway beginning and end points

6 were unchanged. Petitioners appealed, citing the lack of findings on OHP Policy 1G.

7 LUBA deferred to Eugenes list of actions that had been completed or were in the

8 planning stage, but did not address the issue in detail because the OHP Major

9 Improvements Policy had been addressed when the corridor was originally approved:

10 We generally agree with respondents that the rules do not require that a decision to
11 modify a highway corridor, which has already been approved and included in a plan
12 that is acknowledged to comply with the statewide planning goals, must completely
13 re-justify that already approved highway corridor. At least where other aspects of the
14 challenged decision are not at issue, only the modification or amendment of the
15 WEP corridor must be justified, and the WEP itself need not be re-justified. Id., 279-
16 280.
17
18 Contrast that case with the situation here, where Respondent has not addressed the

19 Major Improvements Policy for its proposed improvement.

20 The other implementing policy for 1G is Action 1G.2, which commits the state to

21 support major improvements to state highway facilities only if (a) the major improvement

22 would be cost-effective and (b) funding for the project can reasonably be expected when

23 the project is ready for development and construction. App. G., OHP 87-88.

49
1 Here, several findings address the project's funding prospects, but there is no

2 showing whatsoever that funding can reasonably be expected when the project is ready

3 for development and construction;16 in fact, some show funding will not be available. For

4 example, findings note that most of the PA including the third bridge over the Willamette

5 River and ramp connections on the eastern and western sides of the river, are included

6 in the list of illustrative projects shown in Appendix I of the RTSP. R. 661. But the RTSP

7 notes that illustrative projects are those for which funding is currently not expected to

8 be available over the next 20 years. App. I, SKATS 2015-2035 RTSP, pp. 4-15, 4-16.

9 And, of the Salem River Crossing, the RTSP says components of the PA will

10 only be included once funding for each component can be shown as being reasonably

11 anticipated to be available in the future and that proposed projects such as a new

12 bridge over the Willamette River are not predicted to be affordable without new

13 revenues. App. I, pp. 4-9 4-11, 5-9, 5-11. Further, Respondents TSP, Table 3-8, lists

14 Street System Project Costs by Jurisdiction but indicates: Costs associated with the

15 Salem River Crossing Preferred Alternative are not included in this Table. Costs will be

16 shared by Local, State and Regional Partners. R. 355. Respondents Willamette River

17 crossing policy also demonstrates that funding is far from reasonably expected as Action

18 1G.2 requires: [T]he city shall work with the State and other regional jurisdictions to

16 Respondent amends its TSP to add the PA as a project to be constructed in the

next 10 years. (R. 354 and App. H, Salem TSP, page 3-28.)
50
1 identify means of financing construction and operation of the new bridge identified as the

2 Salem River Crossing Preferred Alternative. R. 360. Indeed, while the Project Funding

3 Strategy Memorandum includes a number of possible funding mechanisms for the $425

4 million project, it labels them all conceptual. R. 3436.

5 Further, testimony puts the $425 million estimated cost of the PA in context by

6 noting it is close to the total amount the Salem region expects to have from all sources

7 for all road improvements over the next 20 years. R. 3409. In response, findings agree

8 that costs and funding are a valid policy question. But findings then assert that cost

9 and certainty of funding is not a criterion for this land use decision. . . . Clearly, there is

10 awareness that funding is a significant issue to be addressed as the project moves

11 forward * * * it is not feasible to have an approved funding plan at this stage in the

12 planning process. R. 490. Respondent thus attempts to directly evade Action 1G.2,

13 which requires an affirmative showing that funding for the project can reasonably be

14 expected at the time the project is to be constructed. Respondent's TSP says the PA is

15 to be constructed within 10 years, but there is no evidence whatsoever to demonstrate

16 that funding is likely to be available within that period, or that funding will be available

17 within the 20-year planning period. Quite the opposite: evidence shows the region does

18 not expect funding for the project, Respondent's funding proposals are vague concepts

19 at best, and that serious discussions about who will pay for the project and how have all

20 been deferred to an unspecified later. Good intentions may famously pave some roads,

21 but good intentions to address funding for a $425 million project at some indefinite future
51
1 time do not constitute any evidence that funding can reasonably be expected to allow

2 construction within 10 or even 20 years.

3 The second major OHP policy at issue is Policy 1F, Alternative Mobility

4 Standards, which establishes state highway mobility targets that implement the OHP

5 objectives. App. G, OHP 69. Policy 1F sets mobility standards as a tool for Evaluating

6 the impacts on state highways of amendments to transportation plans, acknowledged

7 comprehensive plans and land use regulations pursuant to the Transportation Planning

8 Rule (OAR 660-12-060). App. G, OHP 75. The OTC reviews alternative mobility

9 standards proposed in each local TSP before approving them as minor amendments to

10 the OHP.

11 OAR 660-012-0060(1) and (2)(c), dictate that mobility targets be used when

12 assessing amendments to comprehensive plans and land use regulations to determine if

13 the proposed changes are consistent with the planned function, capacity and

14 performance standards of state highway facilities. App. G, OHP 71-72. If an amendment

15 to an acknowledged comprehensive plan would significantly affect an existing

16 transportation facility, the local government must put in place certain measures as

17 provided in the rule, including amending the TSP to modify the planned function,

18 capacity or performance standards of the transportation facility. Thus, to meet the TPR

19 requirements, Respondent must show consistency with the OHP when it amends its

20 acknowledged TSP. OAR 660-012-0015.

52
1 Findings concede that amendments to Respondents TSP will result in further

2 degradation of the performance standards at various intersections on state roadways,

3 causing a significant effect to those facilities.17

4 [T]he State proposes to adopt Alternative Mobility Targets in the Oregon Highway
5 Plan * * * and expects to adopt Alternative Mobility Targets into the Oregon Highway
6 Plan following local approval of the consolidated plan amendments. R. 191.
7
8 Respondent then claims that the Alternative Mobility Standards do not need to be

9 approved by the OTC before the TSP is amended:

10 By ODOT and OTC policy, the proposed amendment will not be presented to the
11 OTC until the local land use adoption process for the Salem River Crossing has
12 been completed. This is consistent with other ODOT and local planning processes
13 where OHP amendments are adopted as the last step after local adoption to
14 demonstrate the local agency support for the amendment. R. 310-311.
15
16 OAR 660-12-0060(1) applies, at the time of adoption, to all comprehensive plan

17 amendments that significantly affect a transportation facility. The Court of Appeals has

18 interpreted the TPR requirement and found that OAR 660-012-0060(1) is mandatory

19 where an amendment would significantly affect a transportation facility:

17 Findings list only four intersections that will fail to meet Salem city standards.
However, the Traffic and Transportation Technical Report indicates that many more
local intersections will not meet state mobility standards under the PA: six along
Highway 212 (Wallace Road) in West Salem, three in the CBD on Highway 99E, and
seven along Highway 99E (Commercial and Liberty Streets) in north Salem. Rec. 5320,
5323-5324 and Table 4.2-4, 5318-5319.
53
1 [T]he local government has no discretion to refuse to put appropriate measures in
2 place where an amendment to * * * a land use regulation would significantly affect
3 a transportation facility. OAR 660-012-0060(1), Willamette Oaks, LLC v. City of
4 Eugene, 232 OR App 29, 36 (2009).
5
6 Here, findings concede that the TSP amendment will have a significant effect on

7 several intersections. Thus, Respondent cannot delay approval of the new performance

8 standards, which are inconsistent with the Oregon Highway Plan, until after its TSP is

9 amended. A local government must provide mitigation for failing facilities

10 simultaneously with a TSP amendment. Citizens for Florence v. City of Florence 39 Or

11 LUBA 255, 264-268 (1998). Compliance with this rule must be addressed when a UGB

12 amendment is adopted. 1000 Friends of Oregon v. City of North Plains, 27 Or LUBA 372

13 (1994). The TPR governs the timeframe to determine a remedy under OAR 660-0012-

14 0060(2). Respondent may not defer compliance with the TPR until some later time or

15 until some action that the OTC may or may not approve is proposed. Respondent

16 caused its own problem, which it could have avoided by delaying its decision for final

17 approval of the UGB and plan amendments pending OTC approval. Instead,

18 Respondent adopted a TSP amendment to add new transportation facilities that will

19 degrade the mobility standards at numerous state roadway intersections. The amended

20 plan is not conditioned upon OTC approval of alternative mobility standards for those

21 affected intersections, nor is there a refinement plan, nor a schedule for completion of

22 the OTC review. By approving final plan amendments before the necessary OTC action,

23 this TSP amendment violates the TPR's requirements that amended mobility standards

54
1 be in place when a covered amendment is approved. OAR 660-012-0015(3) and the

2 OHP require TSP amendments to be consistent with the OHP at the time they are

3 adopted. There is not substantial evidence in the record that the Respondents TSP

4 amendments are consistent with OHP Policies 1G and 1F. LUBA should remand the

5 decision for failure to comply with the requirements of the Transportation Planning Rule

6 and the OHP.

7 5. Respondent failed to comply with OAR 660-012-0060(2) when it amended its

8 TSP to close the Rosemont Avenue off ramp.
9
10 OAR 660-012-0060(1) and (2) require that TSP amendments that significantly

11 affect a transportation facility demonstrate they are consistent with the function, capacity

12 and performance standards of planned facilities. If a local government determines that

13 there would be a significant effect, then the local government must ensure that allowed

14 land uses are consistent with the identified function, capacity, and performance

15 standards of the facility measured at the end of the planning period. OAR 660-012-

16 0060(2). Findings of consistency must be made at the time the TSP is amended.

17 Willamette Oaks, LLC v. City of Eugene, 232 OR App 29, 36 (2009).

18 Respondents TSP amendment addresses the impact the PA will have on the

19 Rosemont exit from Highway 22 in West Salem:

20 The ramp connection from the future Marine Drive NW to westbound Highway 22
21 would merge too close to the existing westbound exit for Rosemont Avenue NW. As
22 a result, this exit would need to be closed or relocated. A facility plan for this stretch
23 of Highway 22 will identify how best to provide access to and from the highway. The
55
1 City will not support closure of the exit at Rosemont . . . until a facility plan has been
2 adopted that addresses access to the southwest portion of West Salem. R. 348.
3
4 The Traffic and Transportation Technical Report indicates that the Rosemont exit

5 closure would shift traffic that currently uses that exit to other routes, including Wallace

6 Road, Edgewater Street, Doaks Ferry Road, and Rosewood and College Drives.

7 R. 5278. However, both Rosewood and College Drives are designated as local streets in

8 Respondents TSP,18 which states that the function of local streets is to provide access

9 to properties and basic circulation within a neighborhood and that a collector street

10 Primarily distributes traffic between neighborhoods, activity centers and the arterial

11 street system. Secondarily, provides property access. Shifting traffic from the closed

12 Rosemont exit will cause Rosewood and College Drives to function as collector streets

13 as some drivers will use those alternatives to access the surrounding neighborhoods.

14 This would cause a significant effect on these two local streets, namely levels of travel

15 and access inconsistent with their functional classification as local streets. The TPR,

16 OAR 660-012-0060(2), requires Respondent to remedy this inconsistency at the same

17 time it amends its TSP. There is no evidence that the TSP was amended to address

18 anticipated changes in the functional classification of Rosewood and College Drives.

19 R. 171, 347-348, 365. Testimony identifies these requirements and Respondent's failure

18 The TSP shows Rosemont as a collector street, and Rosewood and College
Drives as local streets. R. 392.
56
1 to comply. R. 3421-3422. Findings indicate that Respondent will withhold its support for

2 closing the Rosemont exit until ODOT adopts a facility plan to address access to

3 southwest Salem. R. 1164. But that caveat is insufficient to satisfy the TPR mandate that

4 Respondents TSP ensures that measures are in place to mitigate the significant effect

5 of the Rosemont exit closure at the time this amendment which decides that the

6 Rosemont exit will be closed is adopted. Because Highway 22 and the Rosemont exit

7 are ODOT facilities, Respondent cannot control or anticipate when ODOT will close the

8 exit or adopt a facility plan, and there is no guarantee that ODOT will adopt a facility plan

9 before the exit is closed. Thus, Respondent must address the significant effect on

10 Rosewood Drive and College Drive now, at the time when the TSP is amended. Citizens

11 for Florence v. City of Florence, 39 Or LUBA 255, 264-268 (1998). LUBA should remand

12 Respondents TSP amendment for failure to comply with OAR 660-012-0060(2).

13 6. Respondent did not apply appropriate comprehensive plan and zoning

14 designations to the land incorporated into the UGB contrary to requirements of
15 OAR 660 Division 04 and OAR 660-024-0050(6) and (7).
16
17 The PA requires an exception to Statewide Planning Goal 15 (Willamette River

18 Greenway) and a UGB amendment. Division 4 and Division 24 require that lands be

19 planned and zoned to limit the allowed land uses to match those that are used to justify

20 the exception or UGB amendment. Requirements for Goal 15 exceptions are found in

21 the Exceptions Rule (OAR 660, Division 4). OAR 660-004-0018 specifies that, once a

22 reasons exception is approved, plan and zone designations must limit allowed uses to

57
1 only those that are justified in the exception and that any change to the types or

2 intensities of uses allowed requires a new exception. OAR 660-004-0018(4). Similarly,

3 Division 24 requires that lands added to a UGB for a particular public facility must be

4 planned and zoned for the intended use and remain zoned for that use unless they are

5 removed from the UGB. OAR 660-024-0050(6), (7).

6 Here, findings note that "The proposed UGB amendment is based on a specific

7 need for an urban transportation planning facility within the 20-year planning horizon."

8 To implement its decision, Respondent has applied its Parks and Open Space (POS)

9 designation to lands added to the Urban Growth Boundary. R. 125. Respondent claims

10 to meet the requirement as follows:

11 Under Oregons planning framework, local jurisdictions do not typically apply specific
12 plan designations or zones to transportation facilities (including highways, bridges,
13 roads, bicycle/pedestrian paths, etc.). Salems zoning designations extend to the
14 centerline of the right-of-way and the zoning code does not include a specific use
15 category for linear transportation facilities; they are permitted outright in all zones.
16 R. 125.
17 But, by allowing linear transportation facilities as a use permitted outright in all

18 zones, Respondents plans would allow a bait and switch: Facilities not justified by this

19 exception and UGB amendment would be allowed in the exception/expansion areas.

20 Respondents open-ended planning and zoning provisions would permit other linear

21 transportation facilities such as a two-lane local bridge to be substituted for the PA

22 without a showing that non-exception and non-expansion alternatives such as

23 Alternative 2A cannot reasonably meet identified needs. While restrictive plan and

58
1 zoning provisions may not be typical, they are nonetheless required by the unambiguous

2 language of OAR 660-024-0050(6) and (7).

3 Nothing stops Respondent from developing and applying a new plan designation

4 or modifying an existing plan designation to accomplish compliance with these rules.

5 Testimony identifies these requirements and Respondents failure to comply with them.

6 R. 3422-3424.

7 Respondents failure to adopt required plan and zoning restrictions is inconsistent

8 with its need determination, contrary to OAR 660-024-0050(6), and fails to plan and

9 zone lands for the intended use, contrary to OAR 660-024-0050(7). Findings show that

10 the UGB amendment and goal exception are intended for a particular public facility, the

11 Preferred Alternative, which includes constructing a new four-lane bridge with ramps

12 connecting to Highway 22 and related roadways, all estimated to cost at least $425

13 million. R. 351. Justification for the UGB amendment and goal exception are premised

14 on the performance of this specific proposal and supporting analysis, which rejected as

15 unreasonable a non-expansion alternative that performed nearly as well (Alternative 2A).

16 Because linear transportation facilities are a use permitted outright in all

17 zones, the net result of this amendment is that Respondent is not prevented from

18 building facilities other than the PA. This is precisely the sort of bait and switch that the

19 requirements of Division 24 and Division 4 are designed to avoid. LUBA should remand

59
1 the city's UGB and plan amendments and direct the city to adopt plan and zoning which

2 complies with OAR 660-024-0050(6) and (7) and OAR 660-004-0018.

3 V. CONCLUSION

4 There is not substantial evidence in the record to show that Respondents

5 ordinance and amended TSP meet the requirements of Goal 14, Goal 12, applicable

6 administrative rules, the Oregon Highway Plan, or Respondents own Transportation

7 System Plan. Petitioners request that LUBA remand the decision for additional findings.

8
9 ________________________________________
10 John Gear OSB# 073810
11 Attorney for petitioners
12 John Gear Law Office LLC
13 161 High St SE STE 208B, Salem OR 97301-3610
14 503-569-7777 tel ~ 503-206-0924 fax
15 John@JohnGearLaw.com

60