These desiderata are to be achieved through development of local, regional, and state transportation systems plans (TSPs), coordinated with comprehensive land use plans, rather than the typical American planning pattern of assigning land use and transportation plans in separate silos.143 TSPs vary in complexity according to the size of the jurisdiction, planning resources available and rates of growth.144
B. Definitions145
This section deals with various issues regarding the sweep of the rule and its effect on various public and private entities. Its topics include “access management” (control of public and private access to certain public roads),146 “demand management” (changing travel behavior to reduce the need for additional road capacity),147 transportation classifications,148 “transportation system management measures” (techniques for increasing the efficiency, safety, capacity or level of service of a transportation facility without increasing its size)149 and “vehicle miles of travel” (a metric to evaluate movement of people in autos, light trucks and similar vehicles).150 As policies and metrics have evolved, definitions have also changed.151 Other definitions relevant to this discussion will be presented in the context of their use.
C. Preparation of Transportation System Plans152
Oregon transportation planning focuses on the TSP as the policy instrument for transportation related matters.153 ODOT is obliged to plan for state transportation facilities by providing state transportation policies, modal plans (such as for surface, pipeline and marine transportation), specific plans for state transportation facilities, and coordination with other public entities that deal with transportation.154 MPOs are obliged to develop and amend TSPs for facilities of regional significance within their jurisdictions, while counties must develop and amend coordinated regional plans for other transportation facilities within the region.155 Finally, cities and counties must prepare, adopt and amend their TSPs in a manner consistent with adopted local and regional TSPs,156 which must provide for transportation facilities and services “adequate to meet identified local transportation needs and shall be consistent with regional TSPs and adopted elements of the state TSP.”157
D. Metropolitan Transportation Plans and Federal Requirements158
The federal government requires additional elements for a regional transportation plan (RTP) for MPOs. The TPR requires coordination of the adoption or amendment of the RTP through a single coordinated process that encompasses federal and TPR requirements.159
E. Transportation Systems Plan Elements160
All transportation systems plans must contain certain elements:
- An assessment of transportation needs.161
- A plan for arterial and connector roads, standards for local streets and other important non-collector street connections. Road functional classifications (e.g., capacity for collector or arterial roads) must be consistent with state and regional standards, provide for safe and convenient bike and pedestrian circulation, and new connections to arterials and state highways must be consistent with access management categories and include certain elements.162
- Inventories and capacity analyses of existing transportation facilities and the identification and description of proposed facilities.163
F. Transportation Planning and the Statewide Goals164
Transportation plans is an element of city and county comprehensive plans.165 These plans and most of their implementing measures, such as the adoption of new land use regulations and individual zone changes, are subject to review by LCDC under the state’s periodic review process166 or by the Oregon Land Use Board of Appeals which reviews most land use decisions that are appealed.167 Some transportation projects are controversial and prone to litigation, so LCDC wished to limit such litigation so that there was, as far as possible, only a single exposure. Adoption of a TSP provided an appealable decision and the TPR attempted to limit further litigation, if feasible.168
However, the rule also allows some decisions relating to function, general location, and mode of a transportation facility to be deferred to a later, but appealable, decision through adoption of a “refinement plan” when detailed information is not available when the TSP is adopted.169 In that case, the MPO or local government must enter findings to explain the need and circumstances for the deferral, provide assurances that the deferral does not invalidate or preclude the implementation of the TSP, describe the nature of the necessary future findings, and provide a deadline for adoption of the refinement plan.170
G. Determination of Transportation Needs171
The TSP must determine the transportation needs for the relevant public agency developing the plan and include considerations of all public agencies involved, the needs of the transportation disadvantaged, and needs for the movement of goods and services under the state’s economic development goal.172 In TSP preparation, regional agencies shall rely on state transportation needs from state plans, while local governments must rely on needs set forth in state and regional plans.173 These requirements are consistent with the Oregon template of plan consistency and coordination.
H. Evaluation and Selection of Transportation System Alternatives174
The TPR requires the planning agency to consider impacts of “system alternatives that can reasonably be expected to meet the identified transportation needs in a safe manner and at a reasonable cost with available technology.”175 There are different palettes of alternatives for public agencies, depending on population size. All such agencies must consider modifying existing facilities, new facilities or modes of transportation, transportation system management measures, demand management measures, and a “no-build” alternative.176 In areas having more than 1,000,000 people in their populations, the requirements are more extensive.177
In selecting alternatives, the public agency must assure that the proposed transportation system supports urban and rural development by providing types and levels of facilities appropriate for those uses set out in the comprehensive land use plan, meet federal and state environmental requirements, minimize “adverse economic, social environmental and energy consequences” and conflicts among modes of transportation (and in fact facilitate connections among those modes), and avoid principal reliance on any one mode of transportation by increasing transportation choices.178
The TRP also requires regional and local TSPs to establish benchmarks for the periodic evalution of meeting the plan standards at regular intervals.179
I. Transportation Financing Program180
All public entities having more than 2,500 people in their populations must include a transportation financing program listing planned transportation facilities and major improvements, a timing estimate for the same, and rough cost estimates for their completion.181 To avoid litigation, however, the rule declares that the timing and cost estimates are not “land use decisions” that may be appealed at that stage of transportation planning.182 Finally, the rule requires the provision of phased major improvements to encourage urban infill and redevelopment over provision of facilities to undeveloped areas.
J. Transportation Plan Implementation183
Because Oregon requires that land use regulations implement comprehensive plans, it is not surprising to see that the TPR also requires regional and local governments to adopt regulations to implement TSPs.184 Regulations anticipating the relationship between existing and future land uses and transportation facilities must also be adopted, including those to protect present and future road transportation corridors185 and facilities (including airports186) and coordinated review of future transportation facilities (including the imposition of conditions to mitigate their effect).187
Several key elements of TSPs have produced some of the most long-lasting changes to the transportation system in the state. Among these changes are connectivity, VMT reduction, traffic generation, and land use efficiency.
1. CONNECTIVITY
The following requirement is a key provision of the TPR:
Local governments shall adopt land use or subdivision regulations for urban areas and rural communities as set forth below. The purposes of this section are to provide for safe and convenient pedestrian, bicycle and vehicular circulation consistent with access management standards and the function of affected streets, to ensure that new development provides on-site streets and accessways that provide reasonably direct routes for pedestrian and bicycle travel in areas where pedestrian and bicycle travel is likely if connections are provided, and which avoids wherever possible levels of automobile traffic which might interfere with or discourage pedestrian or bicycle travel.188
The power of this section (and related requirements in subsequent sections of the TPR) is that, for the first time in Oregon, provision was made for the needs of pedestrians and bicycles.189 Up to that time, many new roads and arterials were constructed without sidewalks (residential sections of many Oregon cities developed in the 1940s and 1950s were developed with no sidewalks at all), and many residential subdivisions and commercial developments were designed with no connectivity between them, which meant that people could not walk or ride their bikes between them without going out to an arterial, which often had no sidewalks. The rule provision also meant that a “safe streets to schools” policy could be implemented so make it safe for kids to walk or bike to school, rather than having to be bused or driven.190
2. VMT REDUCTION
The TRP participants sought a simple way to measure whether the overall Goal 12 objective of reducing reliance on the automobile was being achieved and found the measure of Vehicle Miles Traveled (VMT) per capita was the best available measurement tool, and thus all plans in metropolitan areas were required to show that their plans, as a whole, would reduce VMT per capita over the planning period by 5 percent. A metropolitan area could use any combination of measures it wished to achieve this goal, as long as it could demonstrate that its proposed measures would lead to this level of reduction. This simple goal had a powerful influence in impelling local governments to find ways to shift travel trips from automobiles to transit, walking and biking. In the modeling, some of the largest reductions came from improving the convenience of walking.191
3. TRAFFIC GENERATION
One of the thorniest issues for planners is how to handle the impact of new development that is proposed along existing transportation routes. Typically, a major developer would come to the local planning department with a proposal to rezone a site from low density residential to commercial or high density residential. The resulting traffic generated by this development would often overwhelm the existing or planned roadway system, especially when taking into account that if one such development is approved, others will almost certainly follow. The TPR required that local governments perform an analysis of the impacts of such land use changes on the transportation system and provide specific mitigations for impacts that may occur.192
4. LAND USE EFFICIENCY
The TPR significantly encourages local governments to use urban land more efficiently by reducing the amount of land used for parking and by narrowing streets. At the time the TPR was adopted, there was a growing body of research that showed that urban areas were requiring significantly more parking than was required for all but the peak few hours of the year and streets were considerably wider than was needed for the safe movement of vehicles in low density residential areas, and even in many commercial areas. MPOs were required to reduce required parking by 10% over the planning period.193 Moreover, in urban areas over 25,000, provision must be made for public transit.194
For MPO areas, land use regulations must reduce reliance on the automobile by allowing transit oriented developments195 along transit routes, implementing a demand management program to meet standards established in its TSP, adopting a parking plan to reduce parking spaces over the planning period, and requiring all major industrial, institutional, retail and office developments to provide either a transit stop on site or connection to such a stop along a trunk route when the transit operator so requires.196
Finally, plan implementation also includes preparation of pedestrian and bicycle facilities that are safe, convenient, offer more direct connections between residential areas and “neighborhood activity centers” (e.g., schools, transit stops and commercial areas)197 and lessen the “footprint” of a road to that necessary for operational needs.198
K. Transportation Project Development199
This section deals with the various categories of transportation projects200 and the subject of collateral attacks on projects, once approved.201 It also deals with the preparation of an Environmental Impact Statement (EIS), that may be required under federal law,202 and the situation in which a regional or local government decides not to build a project included in its TSP.203
K. Transportation Plan Adoption and Update Timing204
This portion of the Rule deals with the due dates for regional and local plans,205 provides transitional rules,206 and allows the DLCD Director to grant a whole or partial temporary exemption from the requirements of the TPR to small jurisdictions (i.e., cities with under 10,000 and counties with under 25,000 people in their populations).207 In Volney v. City of Bend,208 the failure to adopt a TSP compliant with the TPR was determined not to be fatal, as the TPR requires compliance with its provisions regardless of whether the local government has a compliant plan and land use regulations.209 This latter provision is a help to small, cash-strapped local governments.210
M. Plan and Land Use Regulatory Amendments211
This is the most complex portion of the TPR, which has been significantly amended212 and has generated the most litigation. It is controversial because, in general, it requires changes in comprehensive plans and land use regulations which allow new development that “significantly affects” an existing or planned transportation facility,213 to deal with the transportation impacts of that development on the “front end” of the process, rather than leaving those considerations for another time.214 For most of these amendments, the local government must “ensure that allowed land uses are consistent with the identified function, capacity, and performance standards of the facility measured at the end of the planning period identified in the adopted TSP” through various alternative means.215 Moreover, consistent with Oregon urban policy, the rule prohibits the use of an “exception” for a transportation facility that connects urban areas as the basis for permitting another urban use (such as a shopping center or exurban residential development) outside of an urban growth boundary.216
Following the decision of the Oregon Court of Appeals in Jaqua v. City of Springfield,217 that construed this section of the rule in a way that disappointed local governments in its application, so that plan amendments required sufficient transportation capacity throughout the planning period, LCDC cast about to find a way to mitigate a result that might halt plan amendments for many new uses.218 Following considerable controversy,219 the Commission amended the rule so that the measure was no longer a failure to meet performance standards at any time in the (usually 20-year) planning period, but only at the end of that period, allowing for other measures to be taken in the interim to avoid failure.220 Moreover, 2005 - 06 amendments to the rule allowed local governments to include as available facilities to meet transportation standards those that were, in its discretion, “reasonably likely” to be realized during the planning period.221
The rule has also been crafted to deal with particular urban situations, such as providing for “multi-modal mixed-use areas” (MMAs),222 allowing them more flexibility in dealing with transportation needs and providing for “balancing tests” so that local governments may evaluate whether transportation deficiencies are outweighed by the benefits of additional industrial or traded sector jobs.223
N. Transportation Facilities on Rural Lands224
A significant part of the TPR deals with roads in rural areas. Indeed, one of the reasons for the development of the rule was the response to the Western Bypass and other roads connecting urban areas through rural lands in the rapidly growing Portland suburb of Washington County. The urbanizing impact of new roads led many activists to require the use of a heavy burden to demonstrate the need for such roads.225 On the other hand, urban areas must be interconnected and a consensus existed for new or improved roads for those connections.
The TPR declares certain transportation improvements to be consistent with the state’s scheme for separation of urban and rural uses, including those specifically permitted under law for farm and forest lands, related modifications and improvements of existing facilities, park and ride lots, railroad mainlines and branchlines, pipelines, navigation channels, dock replacements, and certain expansions or alterations of public use airports.226 Two of these uses are of interest: new access or collector roads within certain pre-existing developed rural areas or in areas where the function of the road is to reduce access to or local traffic on a state highway,227 and improvements other than those specified in the TPR but deemed necessary to serve local travel needs.228
In view of the fact that many transportation facilities in rural areas are urban in nature and that the foregoing portions of the TPR do not govern some of them, the state has sought accommodation with the “exceptions” process that provides a limited means of allowing uses that do not comply with the Goals.229 The need to connect urban areas is an example of allowing urban transportation facilities to exist in rural areas. The relevant local government must justify the grant230 or denial of those facilities.231 Moreover, the exceptions process must consider alternatives to show that the exception is needed because state policy in applicable goals should not apply. 232 Specifically, the transportation need cannot reasonably be accomodated through alternative modes of transportation, traffic management measures, and improvements to existing transportation facilities, or any combination of these alternatives. 233 Once granted, modifications to an exception are not allowed, save through a new exception process.234 Thus far, it appears that Oregon has achieved the balance of allowing essentially urban tranportation facilities in rural areas without facilitating other urban uses on rural lands.235
V. Where Do We Go From Here: Transportation Challenges For the Future
Understanding our current circumstances is only the first step in preparing for the future. That preparation must also include an assessment of those issues reasonably expected to affect that future. The following are ten transportation issues that confront Oregon planners as they seek prepare the state for its future.
A. What is in Store in our Transportation Future?
Present transportation trends include the rise of the “sharing economy”236 in which car and ride sharing are an increasing part of the trips taken, perhaps lessening the necessity for a personal auto. In congregate living situations for the aged, there is the community bus;237 for elderly and disabled persons, there is the “dial-a-ride.”238 For those working, telecommuting and effective transportation demand management will be options that can significantly reduce transportation needs and costs.239 Meanwhile, mass transit is one solution within denser urban areas (though the utility of the mix among, say, fixed-rail and bus alternatives is debated) as is the use of European-style bullet trains for inter-urban connectivity.240 The use of drones for delivery of goods, and possibly freight, is not out of the question.241 Nor are driverless cars,242 lightweight vehicles,243 or the use of 3-D printing in lieu of delivery impossible.244 With all of this, the need for more roads, or road widths of current use, may well be reduced and our transportation needs significantly altered.245
B. Mitigation of Impacts From New Transportation Facilities
For the most part, we have lived with the proximity of certain transportation uses, such as freeways, pipelines, transit stops, and airports, without concerted efforts at mitigation, taking these uses as a byproduct of modern life. These impacts have an effect on property values, livability, and self-perception.246 It is likely that greater efforts will be made to mitigate these impacts (e.g. through sound barriers on freeways, traffic control at airports, safety features on pipelines) as a part of transportation planning and that the costs will be included in total project costs at the front end.247
C. Making the Transition From the Auto
While a great deal has been done to get Americans out of the single occupancy vehicle, the percentage using that mode of travel is still overwhelming.248 Nevertheless, there are powerful forces that are changing the workplace and the need for personal transportation.249 The costs of owning and driving a car, the inconvenience and time taken in traveling (especially in urban areas outside of major roads), coupled with the rise of reasonable alternatives, such as more frequent and convenient mass transit and the sharing economy, offer the best prospects for the economic and ecological hardships Americans press on themselves.
D. Where Will the Money Come From?
Congress is reluctant to raise the gas tax, and the Oregon legislature is similarly perplexed.250 Even if that tax were raised, there is more than enough deferred maintenance to use all of the additional revenue and more.251 Just as America principally relies on the automobile for transportation, so also is transportation principally reliant on the gas tax, which historically has been the rock on which most transportation projects are built.252 A shift from gas taxes as the principal funding method for funding road facilities is likely, especially as electric cars take a bigger share of private vehicle usage. The result may be taxation based on mileage traveled.253 It is also likely that more general fund appropriations, use fees (such as tolls prepaid in advance or charged monthly to a credit card, as well as parking and local development fees based on use), or other special taxes will be used to fund transportation projects.254
E. Effectiveness of Public Controls on Individual Transportation Choices
Two of the most frequent controls that are an inherent part of transportation planning may be open to question as to their effectiveness. Transportation demand management (TDM) affects those firms that are larger players in controlling traffic flows, so that these users (usually employers) are persuaded to time the arrival and departure of employees.255 However good those schedules may be, they are not a complete answer for the entire community and only control entering or leaving from work, rather than the complete journey. Similarly, parking regulations are often revenue based, as cities undercut them by providing for attractive parking structures which undercut the effectiveness of those regulations in reducing travel.256 Indeed, the regulations increase travel as drivers struggle to find other on-street parking for their vehicles, worrying their time is running out.257
F. Understanding and Responding to the Land Use- Transportation Connection
Land use planning is not a separate silo from transportation planning. Planning high density housing near employment, recreational, and commercial centers makes a great deal of sense and has bonuses in the environment as well as the economy.258 Bringing these two together should be a high priority for planners and public leaders. Perhaps the TPR was prescient in anticipating a popular desire to move away from a dependence on the auto to more connected, walkable, and accessible urban areas. Moreover, the relationship of freight movement and economic development cannot be overlooked. Transportation planning can assist in the movement of goods and services, avoiding conflicts as well as making urban residential areas more livable.259
G. Keeping Partners Talking
One of the more useful aspects of the transportation-planning regime in Oregon is the notion of coordination and consultation in such a way so as to strive to include and accommodate all public agency and private perspectives.260 But public agency governing body members, administrators, planners, engineers, and lawyers are human and tend to see their own perspectives as most reasonable. The result is often squabbling for the sake of contention and familiarity. While the process must remain open for reasonable and reasoned innovation, extended project timelines often translate into higher costs and project uncertainty.
H. Planning and Realizing New Transportation Corridors and Facilities
One of the problems that plagued planners and engineers who foresaw future needed road connections was a process that mapped a future road on a plan, but which was unable to realize the acquisition of right of way for that road or mitigation of its impacts, either because the funds were not available, or the public agency was unwilling to undertake condemnation as a last resort.261 As a result, the road had to be replanned or there were higher acquisition costs.262 The same problem occurs with the acquisition of sites for airports or other transportation facilities.263 The right to just compensation for land acquisition is constitutionally based;264 however, longer range planning may at least have an effect on the price of acquisition.265
I. The Problem Matching New Uses with Adequate Transportation Facilities
Planning is about anticipating and accommodating change; however, Oregon has struggled with this accommodation.266 One of the longer and more contentious portions of the TPR deals with changes from the status quo by way of a plan or zoning map change that has a significant effect on one or more transportation facilities.267 Oregon’s policy has been to require, to a greater or lesser extent, that adequate transportation facilities be in place to accommodate the new use fully, building upon the polite fiction that all those facilities necessary for other planned uses are either present or will be present in the planning horizon.268 While subject to exceptions and accommodations,269 the policy remains and will continue to be a challenge for the development community and local governments who must attempt to find the money or impose an exaction to achieve those facilities.270 This notion of concurrency sounds good, but if the area is already congested, a metropolitan area cannot build itself out of that status as Miami and Seattle have concluded.271 But the measurements and planning process set out in the Rule provide the tools to respond to increased transportation needs and avoid the prospect of moratoria as an alternative.
J. Periodic Review
Early on in the life of the Oregon land use program, the legislature dealt with change through managing single-issue plan and zoning changes, as well as less than complete plan revision, through a process known as Post Acknowledgment Plan Amendments (PAPAs)272 and a separate process called periodic review,273 under which local plans and land use regulations would be reviewed to assure continued compliance with the goals. Over the years, periodic review has been cut back to the point at which it is no longer generally required, leaving many plans “stale” and unable to be responsive to current needs and new solutions.274 If the Oregon program is to survive, it must effectively deal with this problem.
VI. Conclusion
Until the late 1960s, Oregon took the same position as other states in keeping land use planning and transportation as virtually two separate silos. The passage and implementation of SB 100 in 1973 changed all that, but not quickly. While transportation policy found its way into a statewide planning goal, that goal was not at first a major factor in planning. It took the Mount Hood Freeway and Western Bypass de- bates to demonstrate the decisive role of transportation on land use planning and caused both the state’s spatial planning and transportation agencies to prepare, enact, change, and implement a transportation-planning regime like no other in the nation.
It is a fair question to pose whether the enactment and implementation of the TPR actually changed things. A fairly decent case can be made that there was significant and beneficial change wrought by the Rule, even allowing that Oregon started from a more sophisticated planning base before 1991. For example, the state required the planning and land use regulation of all private property by local governments, required conformity of regulations and actions to those plans, and provided a system by which state policy could be realized in these plans and regulations. The TPR built upon this base and made additional innovations:
The Rule formalized and strengthened the relationship between land use and transportation planning, recognizing
- their interdependence and insisting on a factual basis and consistency with policy as a sine qua non for project approval
- The Rule also required planners and decision-makers to consider alternatives to specific projects and modes of transportation275
- Finally, the Rule pragmatically applies to new changes to plans and regulations instead of attempting to retrofit existing uses and patterns into more sophisticated transportation methodologies. That practical effect has made it easier to build consensus for a sort of concurrency for changes made after the rule’s effective date.276
The Transportation Planning Rule requires thoughtful assessments of transportation needs, efficient and environmentally conscious policies to follow, and a pathway for transportation improvements that meet state policy to be provided.277 The TPR has its controversies, not the least of which is its policy of some form of concurrency by which new uses must be supported by adequate transportation facilities. The process provided by the rule subordinates construction of new transportation facilities, and growth itself, to policies established beforehand and amenable to change if needed. That process itself is commendable278; its realization leaves ample room for improvement. Nevertheless, that process, and the TPR itself are far ahead of transportation policies found throughout the United States.