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Urban Lawyer

The Connection Between Land Use and Transportation: The Oregon Experience

by Edward J. Sullivan

Edward J. Sullivan earned his B.A., St. John’s University (N.Y.), 1966; J.D., Willamette University, 1969; M.A. (History), Portland State University, 1973; Urban Studies Certificate, Portland State University, 1974; M.A. (Political Thought), University of Durham; Diploma in Law, University College, Oxford, 1984; LL.M., University College, London, 1978.

The author acknowledges the contributions of many persons who assisted in dealing with the history and details of the  Oregon transportation planning program, including Professor Sy Adler, Frank Angelo, Keith Bartholomew, Bill Blosser, Susan Brody, Robert Cortright, Brian Gregor, Bonnie Heitsch, Gabriella Lang, Michal Wert and especially Mark J. Greenfield. In addition, the author acknowledges the outstanding work of Logan Leichtman, B.B.A., James Madison University, 2007; J.D.,  Willamette University, 2015 in the research and initial drafts of this article.

I.   Introduction

In the United States it has been the practice of planners and engineers     to view the relationship of planning and transportation as unrelated, notwithstanding the evidence to the contrary.1 To some extent, these different views are reflected in the typical enabling acts by which most states have considered planning and land use regulation.

Approximately three-quarters of the states have, at one time or another, enacted the Standard State Zoning Enabling Act of 1926 (SZEA)2 which planners frequently utilize to support zoning regulations and which allows certain local governments to undertake land use regulation.3 The Standard City Planning Enabling Act (SPEA),4 which was also enacted by about half of the states, permits adoption of a plan as a guide for future development.5 It was the SPEA that dealt with certain infrastructure that, once provided, had a more permanent effect on land uses than the imposition of zoning districts on zoning maps. Thus, whereas it was typical for zone changes not to have a required basis in the plan, or for that matter for a plan to exist, the SPEA provided an expectation that a plan (again, if it existed) would be carried out in a number of ways or must specifically be overridden at the local level.

The SPEA provided for the creation of a “planning commission”6 and charged it with specific duties:

It shall be the function and duty of the commission to make and adopt a master plan for the physical development of the municipality, including any areas outside of its boundaries, which in the commission’s judgment bears relation to the planning of such municipality. Such plan, with the accompanying maps, plats, charts, and descriptive matter, shall show the commission’s recommendations for the future development of said territory, including among other things the general location, character, and extent of streets, viaducts, subways, bridges, waterways, water fronts, boulevards, parkways, playgrounds, squares, parks, aviation fields, and other public ways, grounds, and open spaces, the general location of public buildings and other public property, and the general location and extent of public utilities and terminals, whether publicly or privately owned or operated, for water, light, sanitation, transportation, communication, power, and other purposes, and the removal, relocation, widening, narrowing, vacating, abandonment, change of use or extension of any of the foregoing ways, grounds, open spaces, buildings, public utilities or terminals; as well as a zoning plan for the control of the height, area, bulk, location, occupation, and use of buildings and premises. As the work of making the whole master plan progresses, the commission may from time to time make, adopt, and publish a part or parts thereof, any such part to cover one or more major sections or divisions of the municipality or one or more of the aforesaid or other functional matters to be included in the plan. The commission may from time to time amend, extend or add to the plan.7

Although the words “recommendations,” “general location,” and “general character” are used, other portions of the SPEA demonstrate it was in- tended to be binding, for the SPEA also provided:

Whenever the commission shall have adopted the master plan of the municipality, or of one or more of the major sections or districts thereof, no street, square, park or other public way, ground or open space, or public building or structure, or public utility, whether publicly or privately owned, shall be constructed or authorized in the municipality, or in such planned section and district until the location, character and extent thereof shall have been submitted to and approved by the commission: Provided, that in case of disapproval the commission shall communicate its reasons to council, which shall have the power to overrule such disapproval by a recorded vote of not less than two-thirds of its entire membership, * * * The failure of the commission to act within sixty days from and after the date of official submission to the commission shall be deemed approval.8

Finally, the planning commission had the power to delay or deny applications to build in future streets, regardless of whether those streets were opened.9

While the separation of planning and transportation was never complete, planners and transportation engineers operated in separate silos in state and local government agencies. Transportation engineers tended to connect destinations by linear paths interrupted only by topographical, financial, or other physical considerations, and often without regard to the impacts of roads on land use patterns and the urban environment. This was done so that areas could urbanize before anticipated in plans if a road were built so as to prematurely cause the need for other infrastructure.

More recently, both planners and transportation engineers have undertaken their tasks with an understanding of the symbiotic relationship among planning, transportation, and the environment.10 The relatively permanent effects on land use patterns effected by roads,11   the high percentage of road transportation facilities as a part of all capital improvements for infrastructure undertaken at the state and local levels,12 and the limitations of the use of federal and state gasoline  tax funds for roadway transportation,13 all provide a significant rationale for being thoughtful about this relationship. Two other issues are important to understanding this relationship:

1. Transportation planners, transportation engineers, and public officials often tend to think of transportation solely or principally in terms of roads for auto travel; however, transportation is a broad term and includes other modes of transportation such as bikes, pedestrians, public transportation, air and water transportation facilities, and other pipelines and conduits.14
2.   A number of state and local jurisdictions have embraced the notion of “concurrency” so that new developments cannot occur without sufficient infrastructure, which must either be “on the ground” or planned and funded.15

This paper will review the activities of one state, Oregon, to deal with the relationship between planning and transportation over the last quarter century, from the time when the state implicitly approved the “silo” approach to a time when the two are inseparable, so that a significant change in one field is deemed to affect the other. Oregon dealt with that change in separating transportation from other infrastructure matters, revamping its transportation expectations and standards, and adopting a binding administrative rule that required state and local agencies to consider and respond to the consequences of increased transportation activity.

II.     Oregon Transportation Policy

A.   Structure

The provision and regulation of transportation in Oregon is not unlike that of most other states. At the state level, there is the Oregon Department of Transportation or “ODOT,”16 overseen by a Transportation Commission.17 State agencies are obligated to cooperate with ODOT in accomplishing its mission.18 ODOT’s work is funded through, among other sources, motor vehicle fuel and other taxes,19 bonds, and federal funds.20

Other state agencies are significantly involved in transportation matters. The Department of Aviation21 is one, overseen by an Aviation Board.22 In addition, while not providing services relating to transportation directly, the Public Utility Commission23 regulates certain private utilities24 providing certain services associated with transportation, such as pipelines and poles.25 Interstate railroads, except those in which state or local governments have a direct interest, are largely subject to federal, rather than state, jurisdiction and thus are not under the same requirements as public and private agencies in the state to participate in planning.26

At the local level, the general-purpose local governments recognized by Oregon law — counties and cities — plan, administer, and maintain their road and other transportation systems.27 In total, these local road systems are greater in mileage than that owned and maintained by the state.28 Municipalities in Oregon may also operate air- ports, subject to state and federal regulation.29 Due to these facts and because these entities are general-purpose local governments that have sweeping planning powers and responsibilities subject to state oversight,30 these entities have a significant interest in state transportation policy, as they plan and regulate land uses that affect transportation facilities.

Oregon also has enabled special-purpose districts to deal with transportation issues. The state has three Mass Transportation Districts for the largest metropolitan areas of the state (Portland, Eugene, and Salem).31 The enabling statutes provide for a governing body, general manager, and general rules of procedure.32 Among its powers, a mass transportation district may acquire, use, and maintain property to plan for, provide, and operate a mass transit system and related uses.33

These districts have an extensive list of financing options for these purposes.34 There are eight other transportation districts (as opposed to mass transportation districts) to serve less populated areas.35 As authorized by statute,36 these districts may acquire, operate, and maintain public transportation facilities,37 but are limited to grants and property taxes for financing.38

Another significant public agency-type district apart from mass transportation and transportation districts are the various ports of the state. Oregon is on the Pacific Ocean and has two major ocean ports, which have received legislative attention. One is the Port of Portland, which promotes its maritime, shipping, aviation, commercial, and industrial interests as authorized by law in the Portland metropolitan area.39 The other is the southern Oregon International Port of Coos Bay, which owns and operates marine facilities, an airport, and a railroad.40 There are altogether twenty-three ports authorized under Oregon law, including these two.41 These ports generally focus on employment creation and transportation facilities, and thus have an impact on transportation.

This structure demonstrates that there are multiple tiers of public and private transportation providers in Oregon. The state’s task was to find a means by which those providers may coordinate these services with local land use plans and regulations.

B. Oregon Transportation Policy — A Summary

In 1974 the policymaking body of the state’s land use agency, the Land Conservation and Development Commission (LCDC), adopted the first fourteen of what are now nineteen statewide planning goals,42 including Goal 12, Transportation. Seventeen years later, following confusion as to the requirements of Goal 12, LCDC adopted an administrative rule, the Transportation Planning Rule (TPR) interpreting and implementing Goal 12.43

The TPR has a significant impact on the day-to-day activities of public and private agencies in Oregon. The Rule is authorized by LCDC’s statutory power to provide additional, binding detail for broadly worded goals, including the Transportation Goal44 through administrative rules.45 Below is a general summary of the TPR, details of which are found in the following section.

  • The basic instrument is the Transportation Systems Plan (TSP), consisting of a fact-based evaluation of transportation modes and needs, coordinated after consultation with public and private providers and users, that plans for transportation facilities for a twenty-year period in such a way as to avoid over-reliance on any single transportation mode. The level of planning required is appropriate to population density and the level of government involved.
  • The TSP must reinforce other elements of the Oregon planning program, such as the fundamental division between urban and rural lands and uses by which urban uses are generally prohibited outside urban growth boundaries, except under circumstances requiring extraordinary justification and addressing impacts.46
  • Plans must be appropriate for the size of the community and importance of the facilities under consideration.47 They must address present and anticipated transportation needs for the twenty-year planning horizon for all modes,48 consider alternatives to assure transportation choices,49 assess financing sources,50 and be updated periodically.51 Local governments must amend their land use regulations to implement their TSPs and issue permits for facilities approved in the TSP,52 protect present and future transportation facilities,53 provide for safe and convenient pedestrian, bicycle and vehicular circulation,54 plan for and encourage mass transit in larger urban centers,55 reduce reliance on the auto,56 and not “overbuild” those facilities by providing, for example, more lanes than necessary.57
  • In addition to transportation planning, the resultant project development phase is a final, but important, step. The TPR designates a process for state and regional projects,58 yet the focus of this step is not to revisit previous plan decisions59 but to limit the use of (appealable) discretion to new project decisions, although the project development stage also provides for consideration of alter- native designs and mitigation of impacts.
  • The TPR has a number of innovative tools to achieve its objectives in addition to coordinated, fact-based planning. These tools include limitations on property access60 and considerations of demand management61 methods to preserve transportation resources from inefficient use. Availability of access to transit,62 pedestrian,63 and bicycle64 facilities is a primary concern of the TPR, which promotes alternative forms of transportation.
  • Planning and implementation of plans is most controversial when addressing proposals to change current acknowledged plans and land use regulations.65 All city and county plans in Oregon were acknowledged by 1986 as being in compliance with the statewide planning goals; thus the emphasis is on whether any amendment to those plans and regulations complies with the statewide planning goals.66 Because the adequacy of transportation facilities is critical to the state’s planning program, the TPR requires, in general, that adequate provision of transportation facilities must accompany any new land use designation, addressing additional impacts to the transportation systems created by the amendment.67
  • The TPR uses the yardstick of reduction of vehicle miles traveled (VMT) on a per capita basis as a means evaluating transportation systems plans in MPOs.68 These TSPs have been adopted69 and require a reduction of VMT per capita as part of the evaluation of alternatives.70 Given the rule’s emphasis on livability, reduction of congestion and the environment, this emphasis will likely continue.

Two other, and very different, aspects of the TPR are also noteworthy. The rule requires consideration and accommodation of those disabled or otherwise transportation disadvantaged.71 The other interesting issue is the emphasis on freight and the movement of goods, which is given virtually equivalent priority to the movement of people.72

III. Oregon Transportation Planning over the Years

A. The Oregon Land Use System

The Oregon land use system is described in sufficient detail to set the context of the state’s land use laws regarding transportation.73 In 1973, the passage of “SB 100” established the organic law for the current state role in planning. The Land Conservation and Development Commission was charged with the responsibility of adopting and enforcing binding land use policies (called “Goals”), administrative rules and planning procedures for the state and agencies.74  In practice, the subject matter of the Goals falls into five categories: the planning process (Goals 1 and 2), resource lands protection (Goals 3 to 5), human interaction with the environment (Goals 6 - 8 and 13), urbanization (Goals 9 - 12 and 14), and Goals relating to special areas (Goals 15 - 19).75 While transportation deals with both urban and rural areas, its role in urbanization leads to its classification with other urbanizing influences, such as housing, public facilities, and services and the economy of the state.

To secure compliance with the Goals, the state established a process requiring that local governments adopt binding comprehensive plans to assure that land use regulations, incentives, and capital investments are consistent with, and implement, those plans.76 State agencies are generally required to make their programs and actions consistent to those local plans that have been “acknowledged,” or certified by LCDC as complying with the Goals.77 All 241 cities and 36 counties78 have had their plans and regulations “acknowledged” by LCDC.79 Once “acknowledged,” the statewide planning goals drop out as independent criteria for local land use decisions implementing the plan, as they are incorporated in that binding document.80

To assure that plans and land use regulations continue to meet the statewide planning goals, Oregon has required that amendments to those plans and regulations be subject to review,81 and that plans may be reviewed on a periodic basis for compliance.82 If necessary, the state may impose a regulation or practice authorized by statute   or the goals directly on regional or local governments having planning or land use regulatory powers.83 Finally, Oregon has created the Land Use Board of Appeals (LUBA) as a substitute for the courts’ review of local and some regional land use decisions, subject to appellate court review.84

B. Transportation Issues Before Adoption of the Goals

During the early years of its comprehensive land use planning system (1919 - 69), Oregon approached transportation planning similar to the rest of the country — placing land use and transportation planning into separate silos that led to plans favoring the “beltway” style in use by typically east-coast cities such as New York and Washington D.C. That style is characterized by a system of highways that circle a major city center coupled with bypasses, intended to separate urban and suburban uses but which also allows for easy, quick access to those outlying suburban areas.85

The beltway approach was perhaps best exemplified by the city of Portland’s 1943 hiring of Robert Moses to develop a “Portland Improvement” plan for transportation facilities.86 This plan dealt heavily with post-war improvements, working on the assumption that many people brought to the city by the war effort would stay, and that the federal government would supply funds for the improvements.87 Moses was known at the time as the planner responsible for the parkway system of New York City, including FDR drive and its connections to other boroughs through the Triboro Bridge.88 His plan drew heavily on the New York system as a model and consisted mainly of two new elevated thruways to bypass city traffic, a new bridge over the Willamette River, and widening of the existing Ross Island Bridge through conversion of a sidewalk into a roadway.89

The beltway mode of planning prevailed for the next four decades in Oregon. Many of the suggested improvements were eventually built, yielding something of an innercity loop system in the form of Interstates I-405 and I-5.90 Other than the I-84 Freeway connecting Portland with states to the east, Moses’ proposed thruways, which would have provided easy automobile access from the outer beltway to the city center, were largely never constructed. Under this and other similar plans, existing transportation systems are primary drivers of development, yet planners were not required to weigh specific transportation considerations as indicators of feasibility.91 Rather, the tendency under this mode is to plan for development, then draw roads in between the developments or increase capacity on existing roads to suit.92

One proposal based on this belt-and-thruway system that met with significant opposition was the Mount Hood freeway, and from its ashes rose the beginning of the current public (mass) transportation system in Portland. The Mount Hood freeway, which would have stretched from the Willamette River through SE Portland to the City of Gresham, was first proposed in 1955 as one of fourteen new highways proposed at the time.93 The proposal received support from the Federal Bureau of Public Roads, which designated the project as Interstate 80 North and pledged $75 million in federal funds for its construction.94

The project met with steady but relatively weak opposition until 1969 when Congress passed the National Environmental Protection Act (NEPA), followed in 1970 by the Clean Air Act.95 This new legislation required an environmental impact statement to be prepared for the project. The report revealed deficiencies in the environmental effects of the proposal that would increase projected costs. The delay and additional costs further fueled public opposition.96

In 1972, a group known as Southeast Legal Defense mounted what would be a successful NEPA challenge, and was able to shut down the project in 1974 with a federal injunction.97 Both Multnomah County and the City of Portland formally withdrew support for the project, and requested that the money pledged for the Mount Hood Freeway construction be exchanged for funds to improve mass transit and existing roads.98 These redirected funds were then used to construct improvements to Portland’s public transportation system, including the first lines of the current MAX light rail.99

C.  The Adoption of Goal 12

LCDC adopted Goal 12 (Transportation) in 1974, effective in 1975, as one of the original 14 land use goals.100 The goal contained a simple statement; i.e. “To provide and encourage a safe, convenient and economic transportation system,” and spoke to the elements of a “transportation plan,”101 which appeared to be a checklist of desirable transportation planning considerations with no fixed standards.102

D.    The Western Bypass Controversy and the LUTRAQ Project

The style of automobile-dominated transportation planning then came to a head in Oregon in the mid-nineteen eighties in the form of a transportation project. In 1986, the Oregon Department of Transportation undertook to study a Southwest Transportation Corridor in Washington County.103 The result was a bypass proposal that would connect I-5 from Tualatin to Hillsboro, mirroring an existing I-205 and creating the western segment of a Portland outer beltway.104 The study corridor included some land that was outside of the urban growth boundary and some land that was currently in use as farm or forest land.105 In 1989, Metro adopted this “Western Bypass” as the preferred alternative in an update to its regional transportation plan.106

Two local watchdog groups, Sensible Transportation Options for People (STOP) and 1000 Friends of Oregon, appealed the Metro and Washington County decisions to LUBA.107 Both sets of petitioners contended that the plans were updated without a proper analysis of compliance with statewide land use planning goals or justification to take an exception to the goals, particularly Goals 11 (Public Facilities and Services) and 14 (Urbanization).108 Metro responded generally that it was not required to address the statewide goals at that time, because the transportation plan did not require Washington County to include the Western Bypass in its comprehensive plan and those goal issues would be addressed at the time the comprehensive plan was to be amended.109

In the STOP case, LUBA held that Metro had failed to demonstrate compliance with the statewide planning goals or justify an exception.110 The LUBA decision was challenged in the Court of Appeals, and on review that court held that due to the nature of the Western Bypass proposal as only a recommendation to the transportation plan update, the decision was not a final one that would have been reviewable by LUBA.111 The court accordingly vacated LUBA’s decision and dismissed the appeals without reaching the merits regarding statewide planning goal compliance.112 In the separate, but related, case 1000 Friends v. Washington County, LUBA held that a finding of compliance was required when Washington County amended its comprehensive plan, despite an intent to address goal issues in the future.113 The opposition’s strategy worked, however, and as a result of fiscal constraints, doubts whether the project could meet the TPR, and ever-growing public concern over the effects of the project, the original version of the Western Bypass was effectively killed and a different configuration of transportation projects substituted for a major public road.114

Desiring a different way of thinking about transportation, 1000 Friends of Oregon commissioned a study in 1992 that used the same study area as had the original corridor study. The LUTRAQ study (Land Use, Transportation, Air Quality) focused on reducing reliance on the automobile as the primary mode of transportation and on shifting land use patterns in an effort to support alternative methods of transportation.115 The results of the study suggested an alternative transportation system and land use pattern that would focus on multi- modal transportation instead of the typical highway-oriented systems that had dominated urban planning throughout the century.116

The primary method the LUTRAQ study suggested to achieve its goals was through the use of transit-oriented development.117 It is characterized by clustering higher density residential land and commercial development in close proximity to mass transit stops, typically light rail or express bus service, which radiates further outward around these stops to include lower density residential development near transit stations or nodes. By creating a walkable environment, a commuter is encouraged to walk or bike to the transit stop, reducing the likelihood that the commuter will have to use a car for any phase of the trip.118 Other features of this development style include: infill and redevelopment as a means of supplementing and intensifying existing uses, more non-automobile transportation options, and connected local streets that serve community needs without necessitating use   of arterial streets and highways.119

The project also provided suggestions for specific transportation improvements. First among these was the increase in light rail.120 This would be accomplished through the creation of new spoke lines radiating out from the city center and a line that would run the circumference of the city.121 In addition, bus service would need to be improved through the use of express and local feeder lines.122 Bicycle and pedestrian pathways would also need improvement in all areas to ensure an environment friendly to these modes of transportation.123

Methods to alter use patterns such as demand-responsive transit, the name given to dial-a-ride, rideshares, and shuttle services were suggested in addition to the land use and transportation change suggestions.124 This would provide access for passengers who normally may not be able to take advantage of transit opportunities. Market-based solutions were also proposed to reduce automobile reliance. These include increased parking charges, congestion pricing, and free transit passes subsidized by the other two.125 These types of market-based strategies are intended to charge drivers for their previously unaccounted-for externalities. Elected officials, however, are often reluctant to implement these types of measures, which are seen by voters only as increasing the cost of a regular activity.126

The Western Bypass litigation, the search for measurable ways of avoiding principal reliance on a single mode of transportation, and the LUTRAQ project came together in the effort to crystallize state transportation policy in the detailed interpretation of the Transportation Goal in the Transportation Planning Rule (TPR).

E.   Development of the Transportation Planning Rule

The failure of the original Western Bypass proposal came primarily as a result of delays to the project from conservation groups, most notably 1000 Friends of Oregon and STOP that had focused on a road project. Additionally, there was no clear guidance on how to implement Goal 12 or the proper method of addressing the requirements of other statewide planning goals when developing new transportation projects.127 And because some of the proposed bypass was outside of the Portland Metro urban growth boundary, a “reasons exception” was required.128 This confluence of factors had left those involved with a sense that additional authority would be needed in the form of an administrative rule, to implement Goal 12 to secure approval of the Western Bypass, or indeed for any major highway project that utilized lands outside of an urban growth boundary, if extended legal conflict were to be avoided.129 The TPR was drafted and first applied to the pending Western Bypass proposal and was a principal cause of the failure of its original incarnation solely as a new highway.

Additionally, the Oregon Program was approaching middle age. The heady first steps to separate urban and rural lands were complete, but there were additional transformative steps for urban areas to be taken. As one planner for the state observed:

By the mid-1980s the statewide planning program had reached a key milestone: after 10 years of effort all of the state’s cities and counties had completed state- approved (“acknowledged”) plans. Politicians, policy makers, and interest groups began to assess whether the state’s experiment with land use planning had worked, and what ought to be done next. Two major objectives of the program were to protect agricultural land and promote compact urban development patterns rather than more typical urban sprawl that occurred in the rest of the country. Clearly, the adoption of urban growth boundaries (UGBs) was a major step, defining where urban development allowed and limiting development and provision of urban services to “rural lands” outside the UGB.

Memorable among the experts asked to critique the program was noted urbanist Andres Duany. Duany complimented Oregon’s UGBs and farm zoning as effective at limiting development of rural lands, but he stung Oregon planners with his comments about the effectiveness of the state program in providing better development inside UGBs. Duany observed that UGBs were clearly visible and that Oregon had done a good job of containing growth, but he said, within the boundary development in Oregon didn’t look much different than anywhere else in the country. Oregon had contained sprawl, but if the objective was to plan better, more livable urban communities, more work was needed.

Duany and other new urbanists, including Peter Calthorpe, did much to diagnose the problem and suggest remedies. Suburban communities with sparse networks of bigger roads and together with zoning that strictly segregated different uses was a recipe for auto dependent development. Roads and road networks designed for travel by car often lacked sidewalks or bike lanes, and even when such facilities were pro- vided there wasn’t anyplace close by to walk to. A related problem was the pattern of streets in suburban areas, particularly local streets, built by developers as new subdivisions and other developments were constructed. Residential developers were mainly interested in providing easy auto access, but at the same time laying out streets with cul de sacs to discourage or prevent cut-through traffic and provide safe, quiet streets. The result was — and is — a disconnected patchwork of streets that makes walking and cycling (and access to transit, and thus provision of transit) inconvenient at best.

The Oregon Urban Growth Management Study, conducted 1989 - 1991, found an- other contributing cause. Development in Oregon’s urban areas was relatively small scale: the average size of residential subdivisions was about 5 acres. The small and incremental nature of development meant that neighborhood were a patchwork of separate subdivisions. A similar pattern occurred with commercial development along major roadways: each shop, or strip mall or shopping center would connect to the main road, usually via driveways to a city arterial or state highway, but there was little or no effort to connect adjoining uses or provide local street connections to residential areas just off the commercial strip.130

In 1990, Oregon’s Department of Land Conservation and Development (DLCD) responded by initiating the administrative rulemaking process to develop a Transportation Planning Rule in order to: clarify planning requirements of Goal 12; determine what other goal requirements apply to new transportation projects; integrate planning efforts of federal, state, regional, and local governments; integrate transportation and land use planning; clarify the meaning of “land use decision” in a transportation context; increase certainty for transportation projects and cover all modes of transportation; and simplify decisions   on major projects.131 Other major concerns were the siting of major transportation facilities outside of urban growth boundaries132 and alleviating the potential disparate burden on smaller jurisdictions of compliance with the requirements of a new rule.133

ODOT and LCDC undertook to draft the proposed rule. The draft was circulated to affected parties, which included a number of citizen organizations, state agencies, and regional and local governments and planning authorities. After receiving volumes of feedback on the draft rule, yet in a relatively short time frame for administrative rulemaking, the proposed rule was adopted in April 1991.

The purposes of the new Transportation Planning Rule were summarized in a staff report from the DLCD. Regarding coordination with land use planning, the report stated:

A major purpose of the draft rule is to assure that transportation plans and land use plans are mutually supportive of each other. This can be difficult when new land uses are allowed which the transportation system is not designed to serve. This is further complicated when responsibility for transportation planning and land use planning are separated as they are in the Portland area.134

This process would require concurrent consideration of land use plans with transportation needs. Rather than planning first and building roads to suit, the new requirements would necessitate balancing the effect of any new development on the current transportation facilities and identifying what would be needed to ensure that new development would not cause a failure of those facilities. To make this determination quantifiable, the report stated:

This requirement could be enhanced by requiring that transportation plans specify the function and capacity of facilities in the number of trips at key intersections. Whenever a proposed plan amendment would exceed the number of trips planned for a key intersection, coordination of the plan amendment with the regional or state transportation plan would be required.135

Alongside these major purposes, the staff report also listed features of the new rule that would result in changes to allow for plans to adequately provide for future transportation needs. The desired changes included: more coordination between Metropolitan Planning Organizations (MPOs) 136, counties, and cities; amendments to plans and zoning ordinances to allow planned transportation improvements; balancing planned land uses with planned transportation systems; better plans for non-automobile transportation; and reducing urbanization pressure on rural lands.137 The statements of purpose here show the genesis of the rule as an alternative to automobile-only modes of transportation planning. While the rule was only in a draft stage at the time, it was clear at this phase that the goal was to shift into a new paradigm that would promote alternative forms of travel, consider changes to land use patterns to support alternative modes of transportation, and seek to reduce primary reliance on the single-occupant automobile.

IV.  The Structure of the Oregon Transportation Planning Rule

The Transportation Planning Rule took effect in 1991 and has incrementally changed since that time; however, the basic structure of the rule has been fairly constant. A narrative breakdown of the rule   is provided in the following sections.

A.   Purposes138

The rule was adopted to flesh out the very broad language of Statewide Planning Goal 12, Transportation,139 much in the way an administrative rule would provide the details of a statutory scheme. The purposes set out various policy objectives for the state that include providing for:

  • transportation systems adequate to serve state, regional and local transportation needs;
  • the mobility needs for the transportation disadvantaged;
  • choice in transportation modes — transit, pedestrian and bicycle means, in addition to autos, so as to reduce dependence on one mode of transportation140;
  • adequate freight movement through road, air, rail, marine and pipeline transportation;
  • integration of transportation planning with overall comprehensive planning and coordination in urban141 and rural areas; and
  • assurances that future plan amendments impacting transportation are supported by adequate transportation facilities.142

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.

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  1. See, e.g., JANE JACOBS, THE DEATH AND LIFE OF GREAT AMERICAN CITIES (1961) (portraying the conflict between Robert Moses, a “big picture” leader who “got things done” and advocates like Ms. Jacobs, who saw the more detailed perspective of neighborhood life as an equally high value); see also Reuben Duarte, The Fall of Planning Expertise, PLANETIZEN (June 10, 2014, 5:00 AM), http://www.planetizen.com/node/69263; Jarrett Walker, Urban Designers are from Mars, Transit Planners are from Venus, HUMAN TRANSIT (September 11, 2012), http://humantransit.org/2012/09/transit-planners-are-from-mars-urban-designers-are-from-venus.html.
  2. ADVISORY COMM. ON ZONING, U.S. DEP’T OF COMMERCE, A STANDARD STATE ZONING ENABLING ACT (1926) [hereinafter SZEA], https://planning-org-uploaded-media.s3.amazonaws.com/legacy_resources/growingsmart/pdf/SZEnablingAct1926.pdf; see also Standard State Enabling Act and Standard City Planning Enabling Act, AM. PLANNING ASS’N, https://www.planning.org/growingsmart/enablingacts.htm (last visited Sept. 15, 2016).
  3. SZEA, supra note 2, § 3, at 6-7. Under §3 of the Standard Act, zoning was required to be “in accordance with a comprehensive plan;” however, eighty years later there are a majority of states that decline to require a comprehensive plan or to give it binding force if it exists. See id.
  4. ADVISORY COMM. ON PLANNING AND ZONING, U.S. DEP’T OF COMMERCE, A STANDARD CITY PLANNING ENABLING ACT (1928) [hereinafter SPEA], https://planning-orguploaded-media.s3.amazonaws.com/legacy_resources/growingsmart/pdf/CPEnabling%20Act1928.pdf.
  5. Ironically, this standard act does not use the words “comprehensive plan,” which is used in §3 of the Standard State Zoning Enabling Act, supra, but rather uses the terms “master plan” or “city plan.” The use of these very different terms has complicated and confused the relationship of planning and land use regulation over the years. Compare SZEA, supra note 2, § 3, at 6, with SPEA, supra note 4, § 6, at 13-16.
  6. SPEA, supra note 4, §2, at 7.
  7. SPEA, supra note 4, §6, at 13.
  8. SPEA, supra note 4, §9, at 19. Moreover, under sections 12-14 of the SPEA, the planning commission was given jurisdiction to approve or reject subdivisions where the master plans were involved. Id. §§ 12-14. Section 19 gave the additional power of control over access to building lots, so that access to a public street or a certain level of improvement could be required. Id. § 19.
  9. SPEA, supra note 4, §§ 21-25, at 34.
  10. See, for example, the work of Calthorpe Associates in understanding and working with these relationships and seeking to change land use patterns from standard sprawl to a mixed-use pattern that supports the planned light rail and bus network extensions. LUTRAQ: Making the Land Use, Transportation, Air Quality Connection, CALTHORPE ASSOCIATES, http://www.calthorpe.com/lutraq (last visited Sept. 15, 2016)
  11. TODD LITMAN, VICTORIA TRANSP. POLICY INST., EVALUATING TRANSPORTATION LAND USE IMPACTS 11 (2015), http://www.vtpi.org/landuse.pdf.
  12. Id. at 23.
  13. In addition to capital improvements for new facilities or expansion of existing facilities, there are the infrastructure deficiencies caused by deferred maintenance that consume transportation funds as well.
  14. Road transportation for private vehicles appears to be the tail that wags the transportation policy dog. To a great extent, that outcome was governed by rapid expansion of auto ownership following the Second World War and federal funding of state highway projects. President Eisenhower proposed the Federal Aid Highway Act of 1956 to provide for a “national system of interstate and defense highways” of 41,000 miles, the construction of which was asserted to be “essential to the national interest.” The Interstate Highway System, THE HISTORY CHANNEL, http://www.history.com/topics/interstate-highway-system (last visited Sept. 15, 2016). Federal funding changed the nation and became the de facto national land use policy. One knowledgeable Oregon commentator, stated:
    Suburban development patterns in the US are a reflection of the construction of the interstates and dramatic expansion of automobile ownership. Land use planning and zoning have largely followed: where highways are built, lands were zoned/planned to allow uses that correspond with changing accessibility to metropolitan housing, retail and employment markets. Strip commercial development along highways, and at freeway interchanges, and suburban housing tracts in nearby areas that have good access to jobs are encouraged.

    Local municipal planning and zoning was arguably driven by roadway planning in a couple of phases: initially, local officials and developers planned for or sought state construction of major roadways to attract growth to the community, and, then, once development happened locals struggled to expand and widen roads and build new roads to accommodate traffic from new development. Travel and traffic increased faster than roadway planners had estimated for several reasons. These included the suburbanization of employment in the 60’s-80’s, which caused more spread out commutes; the increased accessibility provided by new highways and freeways that allowed people to come longer distances and the increased participation of women in the workforce that led to more commuting and more trips as family life changed from the Ozzie and Harriet model to working moms. (More meals out and more trips outside the home in general meant more traffic.) In short, people adapted to the increased accessibility provided by an extensive roadway network, the expanded availability of cars and cheap gas. They traveled more—a lot more.
    Interview with Robert Cortright, retired Transportation Policy Planner, Oregon Department of Land Conservation and Development, and participant in the formulation of Oregon’s Transportation Planning Rule, discussed herein, (May 15, 2016) (on file with author); see also 1000 FRIENDS OF OREGON, 7 MAKING THE CONNECTIONS: A SUMMARY OF THE LUTRAQ PROJECT 6 (1997), http://www.reconnectingamerica.org/assets/Uploads/bestpractice016.pdf.
  15. The primary states that deal with concurrency are Florida, and, with respect to transportation facilities, Washington. See FLA. STAT. §§ 163.3177, 163.3180; WASH. REV. CODE § 36.70.070. As the discussion below on the changes to OR. ADMIN. R. 660-012-0060 demonstrate, Oregon ultimately did not adopt a strict policy of concurrency, but rather dealt with adequate transportation responses with regard to proposed new uses and assurances that transportation facilities would be sufficient at the end of the planning period. Sy Adler, The Oregon Approach to Integrating Transportation and Land Use Planning, in PLANNING THE OREGON WAY 121, 141 (Carl Abbot, Deborah A. Howe & Sy Adler eds., 1994).
    Robert Cortright, the long-time Transportation Planner for LCDC, compared the concurrency approaches of other states to this TPR section as follows:
    0060 is significant because it sets a standard that requires consideration of and planning for transportation improvements to support increased development. It gave local transportation agencies and ODOT a voice in approval of new development and triggered detailed conversations and negotiations to add needed road improvements to support development. The public got concerns about traffic addressed, developers got some predictability about transportation exactions, and transportation agencies got some funding or improvements in lieu of funding to help keep the road system operating at a reasonable level of service.

    0060 also represents an approach that fits well with the rest of Oregon’s brief effort to use land use plans as the primary tool for decision making. While other states and municipalities adopted strict concurrency requirements for transportation that applied broadly to new developments, the TPR 0060 requirements apply only to plan amendments and zone changes, so that local governments and the public could continue to rely on already adopted, state- approved plans.

    In addition, the TPR, and related provisions of the state highway plan (which set performance standards for state highways that apply to zoning decisions via 0060) have been modified to allow and encourage walkable, mixed use development, consistent with the states evolving effort to promote livable communities that are less dependent on the automobile.
    Interview with Robert Cortright, supra note 14.
  16. OR. REV. STAT. §§ 184.610-.656. To carry out its statutory authority, the Department has rulemaking powers. Id. § 184.619.
  17. See section 184.612 which provides for appointment of five transportation commission members by the Governor, subject to Senate confirmation. In turn, the Commission appoints a Director who administers the Department, which carries out Commission policies. Id. §§ 184.615-.620. Transportation planning is a priority for the agency:
    As its primary duty, the Oregon Transportation Commission shall develop and maintain a state transportation policy and a comprehensive, long-range plan for a safe, multimodal transportation system for the state which encompasses economic efficiency, orderly economic development and environmental quality. The plan shall include, but not be limited to, aviation, highways, mass transit, pipelines, ports, rails and waterways. The plan shall be used by all agencies and officers to guide and coordinate transportation activities and to insure transportation planning utilizes the potential of all existing and developing modes of transportation.
    Id. § 184.618(1). The result of this activity has been the Oregon Transportation Plan (OTP). See Oregon Transportation Plan (OTP), OREGON.GOV, https://www.oregon. gov/ODOT/TD/TP/pages/otp.aspx.
    The importance of ODOT to planning is illustrated in the charge to the Oregon Transportation Commission to adopt a statewide transportation strategy on greenhouse gas emissions to reach certain legislatively adopted goals. See OR. REV. STAT. §§ 184.888-.899, 468A.205.
    In addition, ODOT is charged under section 184.632 with coordinating with the Department of Aviation and port districts. See id. §§ 184.670-.733. See also ODOT’s role in developing and implementing a passenger rail plan for the state under sections 824.400-.430. Recognizing that transportation is a major factor in economic development, ODOT is also directed to participate in, and implement, the state’s economic development strategy. Id. § 284.575.
    ODOT also participates in funding, with federal assistance, various light rail projects under sections 391.090-.150, a possible light rail extension to Vancouver, Washington pursuant to an interstate compact under sections 391.301-.311, and funding for acquisition, financing lease or disposition of mass transit facilities under sections 391.500-.660.
  18. Id. § 184.668. In addition, the ODOT Director is authorized to protect the state’s transportation interests by bringing actions to seek review of local land use decisions. See id. §§ 197.180, 184.633(5).
  19. Id. § 319.020(1)(b).
  20. Sections 367.555-.600 allow for voter-approved general obligation bonds issued by the state, while sections 367.605-.620 authorize the pledging of State Highway Fund monies to pay Highway User Tax Bonds to implement certain state road improvements. Other funds exist, such as the Urban Trail Fund for supplemental and connecting multiuse trails for nonmotorized vehicles and pedestrians, section 317.017, and the Oregon Transportation Infrastructure Fund funded by revenue bonds, sections 367.015-040, and administered by a bank. See OR. ADMIN. R. 731-030-0010 to -0179; see also OR Transportation Infrastructure Bank, OREGON.GOV, https://www.oregon.gov/ODOT/CS/FS/pages/otib.aspx (last visited Sept. 15, 2016). There are also Grant Anticipation Revenue Bonds. OR. REV. STAT. §§ 317.161-.181. Additionally, ODOT is authorized to lend road bond funds giving priority to projects in cities and counties most affected by unemployment. See OR. CONST. art. IX, § 3(a); see also OR. REV. STAT. § 367.700-.750. The state contributes to local road projects, under sections 367. 080-.086, through Connect Oregon, which is described as follows:
    ConnectOregon is a lottery-backed bond initiative to invest in air, rail, marine, transit, and bicycle/pedestrian infrastructure to ensure Oregon’s transportation system is strong, diverse, and efficient.

    ConnectOregon projects are eligible for up to 70 percent of project costs for grants. A minimum 30% cash match is required from the recipient for all grant funded projects. Projects eligible for funding from state fuel tax revenues (section 3a, Article IX of the Oregon Constitution, the Highway Trust Fund), are not eligible for ConnectOregon funding. If a highway or public road element is essential to the complete functioning of the proposed project, applicants are encouraged to work with their ODOT region, city, or county to identify the necessary funding sources.
    ConnectOregon, OREGON.GOV, http://www.oregon.gov/ODOT/TD/TP/pages/connector.aspx (last visited Sept. 15, 2016).
    Lastly, the state provides funds and alternative means to meet the Oregon Transportation Planning Rule (TPR) discussed below. OR. REV. STAT. § 367.850.
    In the 2015-17 budget, ODOT is anticipated to have (among other revenues) $1.087 billion in fuel tax funds, $608 million from the motor vehicle weight-mile tax, $858 million in federal grants, $677 million in driver and vehicle license fees, $481 million in bond revenues, and $107 million in lottery funds. ODOT anticipates it will disburse $517 million to counties and $341 million to cities for road use and $87 million to other state agencies for park, marine and aviation projects. OR. DEP’T OF TRANSP., 2015-2017 LEGISLATIVELY ADOPTED BUDGET 1-23, http://www. oregon.gov/ODOT/CS/20152017%20Budget%20Documents/ODOT%202015-2017%20Legislatively%20Adopted%20Budget.pdf.
  21. OR. REV. STAT. §§ 835.100-.114. The Department is funded, in part, from aircraft fuel taxes imposed. Id. § 319.020(2).
  22. Id. § 835.102(2).
  23. Id. § 756.040.
  24. The broad definition of “public utility” in section 757.005, which may include the furnishing of heat, light and power, but not those services furnished by a municipality. Railroads and certain other providers are excluded. See id. § 757.005.
  25. Id.
  26. See, e.g., Burlington N. v. Dep’t of Transp., 206 P.3d 261, 262-63 (Or. Ct. App., 2009). However, the state does influence the land use activities of railroads through the administration of the Clean Water Act, 33 U.S.C. §§ 1251-1376, in dealing with impacts on water quality, through interaction with the Corps of Engineers on wetland issues, and also through interaction with the National Oceanic and Atmospheric Administration (NOAA) with regard to endangered species. Interview with William Blosser, former Chair of the Oregon Land Conservation and Development Commission at the time of the adoption of the TPR (May 15, 2016) (on file with author).
  27. Counties have statutory authorization for their road functions under OR. REV. STAT. Chapters 368, 370 and 373, while cities have authority under their “home rule” charters under OR. CONST. art. XI, § 2.
  28. The State of Oregon has about 8700 miles of road, while cities have 10,974 miles, counties 26,677 miles and the federal government about 21,000 miles. See RD. INVENTORY & CLASSIFICATION SERVS., OR. DEP’T OF TRANSP., 2014 OREGON MILEAGE REPORT 4, 6 (2015), https://www.oregon.gov/ODOT/TD/TDATA/rics/docs/2014_OMR.pdf.
  29. OR. REV. STAT. § 836.200. For a list of Oregon municipal airports, see Department of Aviation, OREGON.GOV, https://www.oregon.gov/aviation/Pages/Municiple_Airports_Online.aspx (last visited Sept. 15, 2016). Oregon has also sought to protect public and private airports from local regulations that may intrude on their existence or viability. See OR. REV. STAT. § 836.616(2).
  30. OR. REV. STAT. section 197.005(5) contains legislative findings, including one that cities and county governments are responsible for developing comprehensive plans, which are the principal instruments of land use regulation. See also id. § 197.175.
  31. OR. REV. STAT. § 267.020. The procedures for the formation of the districts in Portland and Eugene are found in OR. REV. STAT. sections 267.080, 267.085-.097, while the Salem district formation is found in OR. REV. STAT. sections 267.080, 267.107-.114.
  32. OR. REV. STAT. §§ 267.120-.170. Provision is also made for withdrawal of territory from the district. Id. §§ 267.250-.263.
  33. Id. §§ 267.200.
  34. Id. §§ 267.300(1)(a)-(k). These options include property taxes, service charges, bond proceeds, business license fees, personal income taxes, and payroll taxes. Id. § 267.300(1)(b), (d), (e), (j).
  35. See Transit Districts, OREGON BLUE BOOK, http://bluebook.state.or.us/local/other/other05.htm (lasted visited Sept. 15, 2016).
  36. OR. REV. STAT. §§ 267.510-.650.
  37. Id. § 267.570. However, the district is also under an obligation to prepare a public transportation plan within a reasonable time after formation. Id. § 267.575. Among other things subsection 2 provides:
    The plan shall show existing and proposed transit systems of the district and of other public and private agencies relating to public transit. It shall demonstrate a basis for the coordination and planning of future construction, improvement and equipment acquisition of the district, governmental agencies and private interests to assure maximum efficiency and use of public transit in the district.
    Id. § 267.575(2).
  38. Id. § 267.530.
  39. Id. § 778.015; see generally, OR. REV. STAT. ch. 778 (regarding the powers and duties of the Port of Portland). A board of commissioners appointed by the Governor and confirmed by the state senate governs the port. OR. REV. STAT. §§ 778.210-.215. Among other things, the Port of Portland owns and leases lands and facilities for commercial and industrial uses, and operates marine terminals and the Portland International Airport. See generally PORT OF PORTLAND, http://www2.portofportland.com (last visited Sept. 15, 2016). Besides its marine and airport functions, this Port has a significant impact on trucking in connection with its facilities. See generally, Drayage and Trucking Companies, PORT OF PORTLAND, https://www2.portofportland.com/Properties/DrayageandTruckingCompanies (last visited Sept. 15, 2016).
  40. OR. REV. STAT. §§ 777.915-.953; see also PORT OF COOS BAY, http://portofcoosbay.com (last visited Sept. 15, 2016). Unlike the Port of Portland, an elected board of port commissioners governs the International Port of Coos Bay. OR. REV. STAT. §§ 777.923-.933. The Southwest Oregon Regional Airport in Coos Bay is owned and operated by an airport district, formed pursuant to OR. REV. STAT. ch. 838. See generally SOUTHWEST OREGON REGIONAL AIRPORT, http://cooscountyairportdistrict.com (last visited Sept. 15, 2016).
  41. See Oregon Ports Directory, OREGON PUBLIC PORTS, http://oregonports.com/oregonports/directory.html (last visited Sept. 15, 2016). These ports may be inland, such as along the Columbia River so as to facilitate movement of grain and other agricultural goods, including those in Arlington, Morrow and The Dalles. They may also operate airports, such as those in St. Helens and Gold Beach. See id.
  42. Other statewide planning goals relate to the planning process, resource lands, interaction with the environment, urbanization and specific areas of the state in which the state has a special planning interest. See Edward J. Sullivan, The Quiet Revolution Goes West: The Oregon Planning Program 1961-2011, 45 J. MARSHALL L. REV. 357, 369 (2012).
  43. See LAUREN KING, OREGON’S TRANSPORTATION PLANNING RULE 3-4 (2012), https://scholarsbank.uoregon.edu/xmlui/bitstream/handle/1794/12270/Lauren_King_CRP_Terminal_Project.pdf?sequence=1&isAllowed=y.
  44. Statewide Planning Goal 12, OR. ADMIN. R. 660-012-0000.
  45. OR. REV. STAT. § 197.040(1)(c).
  46. See Edward J. Sullivan, Urbanization in Oregon: Goal 14 and the Urban Growth Boundary, 47 URB. LAW. 165, 165 (2015); see also Statewide Planning Goal 14, OR ADMIN. R. 660-014-0000.
  47. OR. ADMIN. R. 660-012-0015. The largest of the substate public agencies, Metro, has specific rules with regard to compliance with federal and state transportation planning. OR. ADMIN. R. 660-012-0016(2)(c).
  48. OR. ADMIN. R. 660-012-0030(3)(a).
  49. OR. ADMIN. R. 660-012-0035.
  50. OR. ADMIN. R. 660-012-0040(1).
  51. OR. ADMIN. R. 660-012-0055(6).
  52. OR. ADMIN. R. 660-012-0045(1).
  53. OR. ADMIN. R. 660-012-0045(2).
  54. OR. ADMIN. R. 660-012-0045(3).
  55. OR. ADMIN. R. 660-012-0045(4), (6).
  56. OR. ADMIN. R. 660-012-0045(5).
  57. OR. ADMIN. R. 660-012-0045(7).
  58. OR. ADMIN. R. 660-012-0050(1), (2).
  59. In particular, OR. ADMIN. R. 660-012-0050(3) provides that previous land use decisions regarding the “need, mode, function, or general location” of a project need not be revisited; only those remaining project decisions in which there is an element of discretion or the application of law or judgment are reviewable in this later stage. Id.
  60. See OR. ADMIN. R. 660-012-0005(1); see also OR. ADMIN. R. 660-012-0020(2) b), (f); OR. ADMIN. R. 660-012-0035(5)(c)(D)(iii); OR. ADMIN. R. 660-012-0045(3).
  61. These methods may include, but are not limited to, the use of alternative modes, ride- sharing and vanpool programs, trip-reduction ordinances, shifting to off-peak periods, and reduced or paid parking. OR. ADMIN. R. 660-012-0005(7); see also OR. ADMIN. R. 660-012-0020(2)(f); OR. ADMIN. R. 0035(1)(d), (5)(c)(B); OR. ADMIN. R. 660-012-0045(5)(b), (c)(D).
  62. See OR. ADMIN. R. 660-012-0005(2), (11)(a), (12) (definitions); see also OR. ADMIN. R. 660-012-0020(2)(c)(C) (elements of a TSP); OR. ADMIN. R.660-012-0045 (3)(b), (d) (B), (4)(a), (b)(C), (5). In addition, the TPR uses the pedestrian plaza adjacent to a transit stop as a means of promoting transit use. See OR. ADMIN. R. 660-012-0005(20); see also OR. ADMIN. R. 660-012-0045(4)(b)(C)(i).
  63. See OR. ADMIN. R. 660-012-0000(1)(c), (3)(a), (c) (purposes); see also OR. ADMIN. R. 660-012-0005(1), (5), (8), (29), (42) (definitions); OR. ADMIN. R. 660-012-0020(2)(b), (c)(C), (d) (TSP elements), OR. ADMIN. R. 660-012-0040(2)(c) (financing); OR. ADMIN. R. 660-012-0045(1)(a), (3), (4)(b)(c), (f), (6), (7) (implementation). In addition, the TPR emphasizes “transit-oriented development” which it describes as:
    a mix of residential, retail and office uses and a supporting network of roads, bicycle and pedestrian ways focused on a major transit stop designed to support a high level of transit use. The key features of transit-oriented development include:
    (a) A mixed-use center at the transit stop, oriented principally to transit riders and pedestrian and bicycle travel from the surrounding area;
    (b) High density of residential development proximate to the transit stop sufficient to support transit operation and neighborhood commercial uses within the TOD;
    (c) A network of roads, and bicycle and pedestrian paths to support high levels of pedestrian access within the TOD and high levels of transit use.
    OR. ADMIN. R. 660-012-0000(29); see also OR. ADMIN. R. 660-012-0000(3) (purpose), OR. ADMIN. R. 660-012-0005(12) (definition); OR. ADMIN. R. 660-012-0045(4)(e), (5)(a), (c) (C), (D), (d)(C) (implementation).
  64. See OR. ADMIN. R. 660-012-0000(1)(c), (3)(a), (c) (purposes); OR. ADMIN. R. 660-012-0005(5), (29) (definitions); OR. ADMIN. R. 660-012-0020(2)(b), (d) (TSP elements); OR. ADMIN. R. 660-012-0045(1)(a)(A), (3), (6), (7) (plan implementation).
  65. “Acknowledgment” is a certification by the state that a plan and land use regulations meet the goals. OR. REV. STAT. § 197.015(1). Any change to an acknowledged plan or regulation must meet all applicable goals. See Sullivan, supra note 42, at 374-77. Thus, if a new highway is proposed to connect urban centers through farmland, the Agricultural Lands Goal, inter alia, must be addressed. In urban areas, significant changes to the transportation system must also, for example, meet Goals 11 (Public Facilities and Services) and 14 (Urbanization).
  66. OR. REV. STAT. §§ 197.628-.644, 197.835(5).
  67. OR. ADMIN R. 660-012-0060. LCDC could have made these obligations retroactive, but chose to deal with transportation sufficiency prospectively. One of the drafters of the TPR observed:
    In crafting the TPR, LCDC recognized that adopted comprehensive plans allowed [the types] and levels of land use that would exceed the capacity of planned facilities. A key principle in the TPR was that land use and the planned transportation system should be “in balance”—i.e. that zoning should not allow intensities of land use that would generate more travel than the roadway network was designed to accommodate. The corresponding policy question for the LCDC was whether local governments should go back and revise plans to assure that zoning was “in balance” with the capacity of planned roadways. Because state and local governments had just spent more than a decade developing state approved plans, and because predictability provided by plans was a major selling point for state mandated planning, the commission decided that the requirement to balance allowed land uses with transportation capacity would apply prospectively: that is, only to future plan amendments and zone changes, and only those that would allow more trip intensive development than existing zoning.
    Interview with Robert Cortright, supra note 14.
  68. This term is defined in OR. ADMIN. R. 660-012-0005(41) as follows:
    [A]utomobile vehicle miles of travel. Automobiles, for purposes of this definition, include automobiles, light trucks, and other similar vehicles used for movement of people. The definition does not include buses, heavy trucks and trips that involve commercial movement of goods. * * * VMT is estimated prospectively through the use of metropolitan area transportation models.
    One of the authors of the TPR, Robert Cortright, recalls that LCDC looked for various measures to carry out one of the objectives of Goal 12, i.e., avoiding principal reliance on any one mode of transportation:
    During development of the TPR, LCDC asked how local governments had responded to being accountable to this directive. In short, they hadn’t. LCDC decided that the goal was a sound policy, and then worked to craft some measure that local governments might use to show that plans had accomplished the direction to avoid principal reliance. The commission considered requirements to increase non-automobile mode share (expanded walking, cycling and transit) and increasing demand management programs, but ultimately decided on VMT reduction, requiring initially that metropolitan areas plan for a 10% reduction in VMT pet capita over a 20 year planning period. VMT was considered a more general measure of reduced reliance that would give individual metropolitan areas more flexibility to craft strategies that best meet local needs and circumstances. For example, a metropolitan area could put more or less emphasis on expanding public transit [as] opposed to other actions.
    Interview with Robert Cortright, supra note 14.
  69. See OR. ADMIN. R. 660-012-0055 (imposing deadlines for TSPs).
  70. See OR. ADMIN. R. 660-012-0035(5)(a)(D), (c), (e), (6), (8).
  71. See OR. ADMIN. R. 660-012-0045(4)(b)(C)(iii) (implementation).
  72. See OR. ADMIN. R. 660-012-0000(1)(d) (purpose); see also OR. ADMIN. R. 660-012-0005(30), (32)-(35), (37) (definitions); OR. ADMIN. R. 660-12-0030(1)(c) (transportation needs). Typical of this equivalency is the definition of “transportation needs” in OR. ADMIN. R. 660-012-0005(32), defined as: “estimates of the movement of people and goods consistent with acknowledged comprehensive plan and the requirements of this rule” (emphasis added).
  73. For a fuller description of that system, see Sullivan, supra note 42.
  74. See OR. REV. STAT. §§ 197.030-.070.
  75. Edward J. Sullivan & Benjamin H. Clark, A Timely, Orderly, and Efficient Arrangement of Public Facilities and Services—The Oregon Approach, 49 WILLAMETTE L. REV. 411, 414 (2013).
  76. OR. REV. STAT. § 197.175(1), (2).
  77. OR. REV. STAT. § 197.180.
  78. See Incorporated Cities: Arranged by County, OREGON BLUE BOOK, http://bluebook.state.or.us/local/cities/bycounty.htm (last visited Sept. 15, 2016).
  79. DEP’T OF LAND CONSERVATION AND DEV., ACKNOWLEDGEMENT SCOREBOARD, (1993) (on file with author).
  80. OR. REV. STAT. § 197.175(1), (2).
  81. Id. §§ 197.610-.625.
  82. Id. §§ 197.628-.644.
  83. Id. § 197.644.
  84. Id. §§ 197.805-.860.
  85. See Moses Plan, PORTLAND BUREAU OF TRANSP., https://www.portlandoregon.gov/transportation/article/66086 (last visited Sept. 16, 2016). As with most of the rest of the country, highway engineering was generally remote from spatial planning and had its own orthodoxies and proclivities. See Adler, supra note 15, at 123-25.
  86. See generally ROBERT MOSES, PORTLAND IMPROVEMENT (1943).
  87. Id. at 20.
  88. This bridge was officially renamed the Robert F. Kennedy Bridge in 2008, though it is often referred to as the “RFK Triborough Bridge” to avoid confusion.
  89. See MOSES, supra note 86, at 32-39.
  90. C Neal, The Future Portland, Oregon, as Envisioned by Robert Moses, THE VIGOROUS NORTH (Oct. 1, 2009), http://www.vigorousnorth.com/2009/10/futureportland-oregon-as-envisioned-by.html.
  91. See, e.g., SPEA supra note 4, § 9, at 19-21.
  92. The conundrum is presented by former LCDC Chair, William Blosser as follows:
    In my mind, the real problem with the approach is that it didn’t ask what was the interaction between road construction and development. The new freeways were marvelously ample for a number of years after construction, but inevitably development surged beyond their capacity and so the area was right back in the mire of undercapacity, while having wiped out significant inner city urban areas to build the highways, that didn’t really help the inner city all that much, but were a great boon to the suburbs, where everyone moved. They didn’t look at it all as a system and ask “how will this work in the long run” as opposed to the next 10-20 years?
    Interview with William Blosser, supra note 26.
  93. Val Ballestrem, Mt. Hood Freeway, THE OR. ENCYCLOPEDIA, https://oregonencyclopedia.org/articles/mt__hood_freeway/#.V944ZGzrvIV (last visited Sept. 16, 2016).
  94. Id.
  95. 42 U.S.C. §§ 4321-4370(h); 42 U.S.C. §§ 7401-7671(q).
  96. See Ballestrem, supra note 93.
  97. Id.
  98. Id.
  99. Id. About half of the redirected funds were used for freeway and other road improvements according to William Blosser, former LCDC Chair. Interview with William Blosser, supra note 26.
  100. Pursuant to OR. REV. STAT. §§ 197.225-.240, LCDC adopted OR. ADMIN. R. 660- 000-0012(12). See LAND CONSERVATION AND DEV. COMM’N, STATE-WIDE PLANNING GOALS AND GUIDELINES (1974) [hereinafter PLANNING GOALS], http://www.oregon.gov/LCD/ docs/history/original_goals_012575.pdf. The 1969 Oregon legislature had signaled the importance of transportation in the land use context by including it as one of its “interim planning goals” adopted by statute. OR. REV. STAT. § 197.515(1)(g) specifically required that plans, inter alia: “[P]rovide and encourage a safe, convenient and economic transportation system including all modes of transportation: Air, water, rail, highway and mass transit, and recognizing differences in the social costs in the various modes of transportation.” This requirement was only repealed after LCDC had adopted its transportation goal. See S. of Sunnyside Neighborhood League v. Bd. of Comm’rs of Clackamas Cty., 569 P.2d 1063, 1074 (Or. 1977); see also 1000 Friends of Or. v. Land Conservation & Dev. Comm’n, 642 P.2d 1158, 1165 (Or. 1982).
  101. PLANNING GOALS, supra note 100, at 33. In summary, the transportation plan must deal with all modes of transportation, be based on an inventory of local, regional and state transportation needs, consider differences in social consequences in the use of different combinations of transportation, avoid principal reliance on one mode of transportation, minimize adverse social, economic and environmental impacts and costs, conserve energy, meet the needs of the transportation disadvantaged, strengthen the flow of goods and services for the local and regional economy and conform to regional and local land use plans. Id. at 33-35. Transportation was designated as a “key facility” for which local governments must plan, as they are: Basic facilities that are primarily planned for by local government but which also may be provided by private enterprise and are essential to the support of more intensive development, including public schools, transportation, water supply, sewage and solid waste disposal.” Id. at 1.
  102. Indeed in City of West Linn v. Land Conservation & Development Commission, the Oregon Court of Appeals referred to the list of transportation planning desiderata as “factors,” rather than standards for a local plan. 119 P.3d 285, 293-94 (Or. Ct. App. 2005).
  103. DANIEL CARLSON ET AL., AT ROADS END: TRANSPORTATION AND LAND USE CHOICES FOR COMMUNITIES 64 (1995).
  104. See id. at 65 for illustration.
  105. Id.
  106. Id. Metro is the MPO for the Portland metropolitan area and has the power to adopt and enforce “functional plans” for transportation and other activities. OR. REV. STAT. § 268.390(2), (4). Metro has accepted that authority and has the power to approve major road facilities. PORTLAND, OR. METRO CODE, ch. 3.08 (2016).
  107. Sensible Transp. Options for People (STOP) v. Metro. Serv. Dist., 18 Or LUBA 221 (1989); 1000 Friends of Or. v. Wash. Cty., 17 Or LUBA 671 (1989).
  108. See infra note 129 and accompanying text.
  109. STOP, 18 Or LUBA at 237.
  110. Id. at 248. The concept of an “exception” is explained infra note 128 and accompanying text.
  111. Sensible Transp. Options for People (STOP) v. Metro. Serv. Dist., 787 P.2d 498, 501 (1990).
  112. Id. at 501-02. On August 6, 1990, LUBA dismissed the case in accordance with the order of Court of Appeal. Nevertheless, there was concern as to how the statewide planning goals applied to new urban-type highways in rural areas. Robert Cortright, an author of the TPR, noted the need to resolve that uncertainty:
    The initial court cases (STOP) preceded the TPR, and were very much a trigger for development of the TPR. Following STOP, lots of folks, including ODOT and local governments were concerned generally about how transportation planning and land use decisions fit with one another, and specifically how (and when) statewide planning goals applied to decisions about how or where to build new roads. LCDC was asked to adopt a rule to clarify the situation.
    Interview with Robert Cortright, supra note 14.
  113. 1000 Friends of Or. v. Wash. Cty., 17 Or LUBA 671, 691 (1989).
  114. Robert Cortright noted:
    Bypass planning also followed after the TPR adoption in April 1991. The TPR required that new highways on rural land, such as the proposed bypass, required a goal exception. The key test to justify an exception is showing that the transportation need to be met by a new roadway cannot reasonably be met through measures that did not require an exception. After three more years of study, bypass planners concluded that transportation needs could reasonably be met through a series of other measures, including roadway expansion and new roadways within the urban growth boundary, improved transit service and other measures.
    Interview with Robert Cortright, supra note 14.

    Other proposals for essentially the same project have been made since then. A short stretch of road in the original study area will be extended along SW 124th Avenue in Tualatin, to be completed in 2018. In addition to road improvements, the construction will include the beginning of a water pipeline linking a treatment plant in Wilsonville to customers in Hillsboro. Dana Tims, Last Vestige of the Westside Bypass Finally Takes Shape, THE OREGONIAN (July 10, 2015, 7:00 AM), http://www.oregonlive.com/washingtoncounty/index.ssf/2015/07/last_vestige_of_the_westside_b.html; see also ANGELO PLANNING GROUP, WASHINGTON COUNTY TRANSPORTATION FUTURES STUDY: TAKING STOCK, A LOOK BACK app. A (2015) (documenting the more modest transportation improvements arising from the analysis of the Western Bypass).
  115. See 1000 FRIENDS OF OREGON, supra note 14. Michal Wert, the ODOT Project Manager for the Western Bypass project summarized her recollection of the events as follows:
    The previous ODOT project manager was looking at a Bypass as the preferred alternative to be evaluated in the NEPA EIS required for the project. When I took over the project at ODOT * * *, 1000 Friends and STOP were still greatly opposed to the Bypass. [ODOT] set up a meeting at the 1000 Friends office and offered to evaluate a “land use alternative” in the EIS that would receive the same evaluation and consideration as the Bypass alternative. A land use alternative developed by ODOT would have been a fruitless effort and not one that ODOT had the background or resources to develop. So our proposal was that 1000 Friends develop the land use alternative and ODOT would commit to a full consideration as part of the EIS process. That is the reason that LUTRAQ considered the same study area as the Bypass. ODOT/consultants and Metro cooperated with 1000 Friends/consultants throughout development of LUTRAQ to ensure that LUTRAQ had the same agency information that was being used in development of the Bypass alternative.

    The final Bypass EIS alternative was not a Bypass, but it was not just LUTRAQ either. It included a broad collection of road improvements as well as transit, projects that came out of a very broad and lengthy public involvement process. Upon approval of the final EIS, this collection of projects was incorporated into the Washington County and Metro planning documents. In my opinion, had LUTRAQ not been part of the formal ODOT EIS process, it would have had an uphill battle to get the LUTRAQ projects folded into regional planning documents. As far as I know, this was the first time that a land use alternative was evaluated as a legitimate alternative in a major NEPA EIS highway project document.
    E-mail from Michal Wert, ODOT Project Manager, Western Bypass, to author (May 25, 2016) (on file with author). Mark Greenfield, a participant in the drafting of the TPR and a land use consultant for the Western Bypass Study, agrees, noting that the LUTRAQ study followed the 1991 adoption of the Rule, but pointed out the likelihood that the original project, which had significant local support, could not meet the exception requirements of the Rule and led to quite different transportation improvements. E-mail from Mark Greenfield, Consultant, Western Bypass Study, to author (May 25, 2016) (on file with author).
  116. See 1000 FRIENDS OF OREGON, supra note 14, at 8.
  117. Id.
  118. Id.
  119. Id.
  120. Id.
  121. Id. at 11.
  122. Id.
  123. Id.
  124. Id.
  125. Id. at 20.
  126. See id.
  127. William Blosser, the LCDC Chair at the time, explained the difficulties posed by undertaking a major state project in legally uncertain circumstances:
    The bypass controversy produced two sub currents: (1) ODOT came to me and said that the Western Bypass situation demonstrated that there was a significant hole in the state land use program: there was no specific guidance on how you plan major new facilities in compliance with the Transportation Goal. They tried to invent a process, but were clearly vulnerable legally and politically at every turn because there was no clear guidance on what would comply with the Goal. (2) For its part, 1000 Friends and STOP were frustrated that the land use program gave no guidance and wanted specifics about what was good transportation planning . . . they wanted LCDC to cover issues such as: connectivity between subdivisions, sidewalks on arterials, management of strip commercial, large commercial parking lots, limits on VMT, etc.
    Interview with William Blosser, supra note 26.

    Michal Wert, the ODOT project manager for the Western Bypass, agrees that the failure of the original project arose out of a confluence of factors that showed the necessity of resolving the problem of urban transportation facilities through the adoption of a comprehensive transportation rule:
    Personally, I do not think that “the failure of the Western Bypass came primarily as a result of opposition to the project from conservation groups,” even though they kept it at bay for a long time. I think the failure of the Bypass came about because it could not hold up to the scrutiny provided by the EIS analysis and public review process when evaluated against the land use alternative. Although the Oregon land use process had not been really tested and was not clear on how to do a major project like the Bypass, the Bypass project provided the vehicle to pursue that test.
    E-mail from Michal Wert, supra note 115. For an excellent account of the extended negotiations leading up to the adoption of the TPR, see Adler, supra note 15; see also Martha J. Bianco & Sy Adler, The Politics of Implementation: The Corporatist Paradigm Applied to the Implementation of Oregon’s Statewide Transportation Planning Rule, 21 J. PLAN. EDUC. & RES. 5, (2001).
  128. An urban highway not principally for connecting rural uses is not permitted outside an urban growth boundary. OR. ADMIN. R. 660-012-0065(3)(g), (o). The Oregon system at the time allowed such a highway only through an “exception” to the applicable statewide planning goals that would have prohibited the same, i.e., Goals 3 and 4 (that require conservation of farm and forest lands respectively) and Goals 11 and 14 (which would otherwise prohibit this urban use outside an urban growth boundary). Because that highway was not already on the ground, the only possible category of exception was a “reasons” exception, which required inter alia that there be reasons why the policies embodied in the applicable goals should not apply. OR. REV. STAT. § 197.732(2)(c). In practice, this was a very difficult approval to secure.
  129. “Those involved” included ODOT, which had a number of major transportation projects that were proposed outside urban growth boundaries. Interview with William Blosser, supra note 26.
  130. Interview with Robert Cortright, supra note 14. Cortright noted Andres Duany’s comments in an article by Gary Reddick in the Portland Business Journal. Gary Reddick, Time for Portland to Grow Up Not Out, PORTLAND BUS. J. (Aug 25, 1996, 9:00 PM), http://www.bizjournals.com/portland/stories/1996/08/26/editorial3.html.
  131. Memorandum from Robert Cortright to Land Conservation and Development Commission on Chart Notes from Transportation Rule Roundtable (September 20, 1990) (on file with author). The roundtable addressed the following five major issues: (1) When/how should specific land use issues be addressed; (2) What goals apply to deciding where improvements will be located; (3) What transportation improvements are appropriate on rural lands; (4) What steps are required to encourage other modes; and (5) When should local governments be required to reconsider plan patterns or densities. The TPR followed on the heels of a failed legislative attempt to “supersite” the Bypass. E-mail from Gabriella Lang, former Oregon Assistant Attorney General, to author (May 15, 2016) (on file with author). However, a super-siting process was later developed for the Portland light rail project through 1991 OR. LAWS Ch. 3 (S.B. 573) and also 1996 OR. LAWS 1st Sp. Sess. Ch. 12 (H.B. 3478).
  132. Memorandum from Robert Cortright, supra note 131, at 4.
  133. Memorandum from Mark Greenfield, Consultant, Western Bypass Committee, to Bob Cortright and Brian Gregor on Preliminary Draft Transportation Planning Rule (November 9, 1990) (on file with author). It should be noted that, in accordance with OR. REV. STAT. § 197.180, ODOT was updating its “state agency coordination program” with LCDC to assure that its actions were consistent with the statewide planning goals and local plans and land use regulations “acknowledged” to meet those goals. The consideration and passage of the TPR was an appropriate time to establish a transportation planning hierarchy. E-mail from Brian Gregor, ODOT transportation planner and co-author of the TPR, to author (May 25, 2016) (on file with author).
  134. Memorandum from Robert Cortright to Land Conservation and Development Commission on January 24-25, 1991, LCDC Meeting, 2 (January 15, 1991) (on file with author).
  135. Id.
  136. Id. at 5. A Metropolitan Planning Organization (MPO) is defined in OR. ADMIN. R. 660-012-0005(14) as:
    [A]n organization located within the State of Oregon and designated by the Governor to coordinate transportation planning in an urbanized area of the state including such designations made subsequent to the adoption of this rule. The Longview-Kelso-Rainier and Walla Walla Valley MPOs are not considered MPOs for the purposes of this division.
    There are currently eight MPOs in Oregon: Portland Metro, Eugene Springfield, Salem-Keizer, Albany-Corvallis, Bend, Middle Rogue, and Rogue Valley. A number of these agencies have formed an organization, the Metropolitan Planning Organization Consortium, to discuss common problems and issues. See About MPOC, OR. MPO CONSORTIUM, http://www.ompoc.org/about.html (last visited Sept. 16, 2016).
  137. Memorandum from Robert Cortright, supra note 134.
  138. OR. ADMIN. R. 660-012-0000. The purpose statement, though not binding, was extensively revised in 2006 to reflect then-current state transportation policies and priorities. See amendments to OR. ADMIN. R. 660-012-0000 (amended by LCDD 6-2006 (2006)).
  139. Id. While Goal 12 has changed slightly over the years, the broad framing of the state’s land use policy towards transportation has been from the beginning relatively bland and unobjectionable, i.e., “to provide and encourage a safe, convenient and economic transportation system.”
  140. The objective of reduction of dependence on one mode of transportation, particularly autos, is found throughout the Rule. See OR. ADMIN. R. 660-012-0000(1)(b), (3)(c) (purposes); OR. ADMIN. R. 660-012-0005(5) (definition of “transportation needs”); OR. ADMIN. R. 660-012-0030(3)(b) (assessing transportation needs); OR. ADMIN. R. 660-012-0035(3)(e), (4), (5)(a)(A), (c)(D), (8) (selection among transportation alternatives); OR. ADMIN. R. 660-012-0045(5) (implementation); OR. ADMIN. R. 660-012-0055(1)(d) (transportation plan adoption and update). Professor Sy Adler notes that this is the only substantive mode-specific element of the TPR. Adler, supra note 15, at 139.
  141. There are multiple provisions in the rule dealing with connections to transit through access ways and building orientation, yet another provision to reduce auto dependence, and to encourage safe bicycle and pedestrian access. See OR. ADMIN R. 660-012-0000(1) (b), (3)(c) (purposes); OR. ADMIN. R. 660-012-0005(2)(5), (20) (definitions); OR. ADMIN. R. 660-012-0010(3) (transportation planning); OR. ADMIN. R. 660-021-0020(2)(c)(C) (elements of the transportation plan); OR. ADMIN. R. 660- 012-0035(4), (5)(a), (c), (d)(D) (evaluation of alternatives); OR. ADMIN. R. 660-012-0045(3)(b), (d)(B), (4)(b), (e), (f), (5)(e), (6) (implementation). As an accommodation to commercial developers, an alternative to a structure used intensely being required to be located in close proximity to transit, the rule also allows a “pedestrian plaza” (defined in OR. ADMIN. R. 660-012-0005(20) and described as “a small semi-enclosed area usually adjoining a sidewalk or a transit stop which provides a place for pedestrians to sit, stand or rest”). See OR. ADMIN. R. 660-012-0045(4)(b)(C)(i); see also Memorandum from Bob Cortright, Land Use and Transportation Planner, to the Land Use and Development Commission 5 (Apr. 3, 1995) [hereinafter Cortright Memorandum, Apr. 3, 1995] (on file with author).
    DLCD staff responded to criticisms during the 2004-06 TPR revisions regarding the purpose of reduced reliance on the automobile, responding that the purpose statement in OR. ADMIN. R. 660-012-0000 should be further revised to:

    - Broaden the scope of the purpose statement to address a range of transportation needs and outcomes
    - Retain but refine the direction to reduce reliance on the automobile by:
        - placing additional emphasis on providing transportation options as the means to accomplish reduced reliance
       - clarifying that efforts to reduce reliance should be particularly directed towards peak periods and to reducing use of single occupant vehicles
       - clarifying expectations for different sizes of urban areas, and
       - making the direction to reduce reliance less prominent in the purpose statement.

    See
    Memorandum from Robert Cortright, Transportation Planning Coordinator, to the Land Conservation and Development Commission 4-8 (Jan. 18, 2006) (on file with author).
  142. OR. ADMIN. R. 660-012-0000(1). In Department of Transportation v. Douglas County, the Oregon Court of Appeals observed: “The TPR serves as an implementing rule to statewide planning Goal 12. In broad terms, it requires local governments to include in their comprehensive plans a combination of their acknowledged existing provisions, newly adopted provisions and amended provisions that, taken together, achieve consistency with TPR requirements.” 967 P.2d 901, 902 (Or. Ct. App. 1998).
  143. The coordination of transportation planning, as well as comprehensive planning, in Oregon is a hallmark of that state’s planning program. For example, counties and Metro prepare TSPs for regional facilities (including transportation facilities connecting urban areas through rural areas) for the Portland Metro Region and the State of Oregon, through ODOT prepares a TSP for state transportation facilities, coordinated with the needs and data from local plans.
  144. OR. ADMIN. R. 660-012-0000(3). This subsection distinguishes transportation needs among various urban areas. All urban areas must have safe and convenient vehicular circulation and must “enhance, promote and facilitate safe and convenient and pedestrian and bicycle travel.” Urban areas of over 25,000 population must “promote the provision of transit service where feasible and more efficient performance of existing transportation facilities through transportation system management and demand management measures.” Id. In Metropolitan Areas (those where Metropolitan Planning Organizations or MPOs exist), reduction of reliance on the automobile, through promotion of alternative transportation modes and street connectivity, are key desired outcomes. Id.; see also supra note 136.

    Transportation planning, and implementation, may affect state and local liability for transportation hazards that cause injury. See Turner v. Dep’t of Transp., 348 P.3d 253, 263-65 (Or. Ct. App. 2015).
  145. OR. ADMIN. R. 660-012-0005.
  146. OR. ADMIN. R. 660-012-0005(1).
  147. OR. ADMIN. R. 660-012-0005(7).
  148. For example, “accessway” under OR. ADMIN. R. 660-012-0005(2); “approach road” (4); “local streets” (9); “major transportation stop” (12); “pedestrian connection” (18); “pedestrian district” (19); and “transit oriented development” (29).
  149. OR. ADMIN. R. 660-012-0005(31).
  150. OR. ADMIN. R. 660-012-0005(41).
  151. For example, over the years LCDC has given way from a metric approach to such things as orientation of buildings, location of improvements and pedestrian facilities “at or near” a “major” transit stop to allow local governments additional flexibility in site planning these facilities. See, e.g., OR. ADMIN. R. 660-012-0005(5), (11)(a), (19); OR. ADMIN. R. 660-012-0045(4); see also Cortright Memorandum, Apr. 3, 1995, supra note 141.
  152. OR. ADMIN. R. 660-012-0015; see Turner v. Dep’t of Transp., 348 P.3d 253, 263 n.8 (Or. Ct. App. 2015); see also Woodard v. City of Cottage Grove, 211 P.3d 931 (Or. Ct. App. 2009).
  153. OR. ADMIN. R. 660-012-0005(38); see also discussion infra Part II.A.
  154. OR. ADMIN. R. 660-012-0015(1), (5). In addition mass transit, transportation, airport and port districts, entities that had traditionally planned and operated facilities without much coordination, are obliged to participate in transportation planning, and conflict resolution mechanisms are provided to deal with particular issues. OR. ADMIN. R. 660-012-0015(6), (7).
  155. OR. ADMIN. R. 660-012-0015(2). This same subsection requires that the county and its constituent cities include this regional plan in their own comprehensive plans and that the regional plan be coordinated with ODOT’s TSP. The TPR also provides for a conflict resolution process in the event that regional TSPs are not consistent with local acknowledged comprehensive plans, so that one or the other is amended to meet the conflict. For MPOs outside the Metropolitan Portland region, any affected local government may petition LCDC for a resolution of that conflict. OR. ADMIN. R. 660-012-0015(7).
  156. OR. ADMIN. R. 660-012-0015(3).
  157. Id.
  158. OR. ADMIN. R. 660-012-0016. This provision, which largely deals with consultation and coordination in federal transportation funding, was originally adopted in 2006 and amended in 2014. See ROBERT CORTRIGHT, DEP’T OF LAND CONSERVATION & DEV., PUBLIC HEARING AND POSSIBLE ADOPTION OF PROPOSED AMENDMENTS TO OREGON ADMINISTRATIVE RULE 660-012 (TRANSPORTATION PLANNING RULE) 10-12 (2006), http://www.oregon.gov/LCD/index.shtml; see also BILL HOLMSTROM, DEP’T OF LAND CONSERVATION & DEV., MINOR AND TECHNICAL AMENDMENTS TO THE TRANSPORTATION PLANNING RULES OAR CHAPTER 660, DIVISION 12 at 2 (2014), www.oregon.gov/LCD.
  159. OR. ADMIN. R. 660-012-016(1). Subsection (2) requires local governments in the region to review the RTP and either find it to be consistent with the local TSP or to amend one or the other plan so that they are consistent. OR. ADMIN. R. 660-012-016(2). Subsections (3) to (5) of this section deal with those items that require a plan amendment (e.g., adding or deleting a transportation project, modifying or changing the classification or location of a major transportation facility) or are exempt (e.g., changes to costs or federal revenue projections for a project). OR. ADMIN. R. 660-012-016(3)-(5).
  160. OR. ADMIN. R. 660-012-0020.
  161. OR. ADMIN. R. 660-012-0020(2)(a).
  162. OR. ADMIN. R. 660-012-0020(2)(b). Local street standards must include provision for street extensions, and connections with existing and planned streets. OR. ADMIN. R. 660-012-0020(2)(b)(A)-(B). In addition, those plans must have plans for public transportation, a network of bicycle and pedestrian routes, plans for air, rail, water and pipeline facilities, a parking plan, regulations to implement that plan, and for certain jurisdictions transportation system and demand management plans and a transportation financing program. OR. ADMIN. R. 660-012-0020(2).
  163. OR. ADMIN. R. 660-012-0020(3). As elsewhere in the TPR, the focus is upon accurate and consistent measurement of the impacts of land use upon transportation facilities using consistent metrics. Jaqua v. City of Springfield, 91 P.3d 817, 826 (Or. Ct. App. 2004). It is the function of the TSP, inter alia, to set and implement acceptable level of service standards for transportation facilities. Id. The implementing measures must be in place to avoid any failure or significant degradation of a transportation facility. Id. at 827-28. However, those measures may include an overlay zone or other mechanism to prevent further degradation of a transportation facility until a new plan or other arrangement to assure adequate capacity is in place. Polk Cty. v. Dep’t of Land Conservation & Dev., 176 P.3d 432, 443 (Or. Ct. App. 2008); see also Turner v. Dep’t of Transp., 348 P.3d 253, 263 n.8 (Or. Ct. App. 2015).
  164. OR. ADMIN. R. 660-012-0025.
  165. OR. REV. STAT. § 268.330. In the Portland region, Metro is also provided with significant tools to shape transportation policy and facilities. Id. § 268.330(2). Metro may:
    1. Contract with the United States or with any county, city or state, or any of their departments or agencies, for the construction, preservation, improvement, operation or maintenance of any mass transit system.
    2. Build, construct, purchase, improve, operate and maintain, subject to other applicable provisions of law, all improvements, facilities or equipment necessary or desirable for the mass transit system of the district.
    3. Enter into contracts and employ agents, engineers, attorneys and other persons and fix their compensation.
    4. Fix and collect charges for the use of the transit system and other district facilities.
    5. Construct, acquire, maintain and operate passenger terminal facilities and motor vehicle parking facilities in connection with the mass transit system within or outside the district.
    6. Use a public thoroughfare in a manner mutually agreed to by the governing bodies of the district and of the thoroughfare or, if they cannot so agree upon how the district may use the thoroughfare, in a manner determined by an arbitrator appointed by the Governor.
    7. Do such other acts or things as may be necessary or convenient for the proper exercise of the powers granted to a district by this chapter.
    Id. In addition, Metro has significant planning powers, among which is the power to define and apply a planning procedure that identifies and designates areas and activities having “significant impact” on regional development and specifically including transportation. Id. § 268.390(1)(c).
  166. OR. REV. STAT. §§ 197.628-.644.
  167. OR. REV. STAT. §§ 197.805-.850.
  168. OR. ADMIN. R. 660-012-0025 provides: “Except as provided in section (3) of this rule, adoption of a TSP shall constitute the land use decision regarding the need for transportation facilities, services and major improvements and their function, mode, and general location.” As part of this “one bite at the apple” approach subsection (2) of this section requires the adoption of findings for compliance with the statewide planning goals. Id.
  169. OR. ADMIN. R. 660-012-0025(2). OR. ADMIN. R. 660-012-0005(25) defines “refinement plan” as follows: “[A]n amendment to the transportation system plan, which resolves, at a systems level, determinations on function, mode or general location which were deferred during transportation system planning because detailed information needed to make those determinations could not reasonably be obtained during that process.”
  170. In most circumstances, the Oregon planning system is hostile to deferrals; however, the segmented process for transportation project planning and the susceptibility of larger projects for litigation created the need for this exception.
  171. OR. ADMIN. R. 660-012-0030.
  172. OR. ADMIN. R. 660-012-0030(1). The economic development goal is Goal 9, Economy of the State. OR. ADMIN. R. 660-000-0015(9).
  173. OR. ADMIN. R. 660-012-0030(2); see also 1000 Friends of Or. v. Yamhill Cty., 126 P.3d 684, 687 n.4 (Or. Ct. App. 2005). In preparing their own assessment of transportation needs, local governments must use those population and employment forecasts and traffic distributions from their own acknowledged plans. These figures must utilize a 20-year planning horizon. OR. ADMIN. R. 660-012-0030(3).
  174. OR. ADMIN. R. 660-012-0035.
  175. OR. ADMIN. R. 660-012-0035(1).
  176. OR. ADMIN. R. 660-012-0035(1)(a)-(e). However, if existing or committed future transportation services have adequate capacity to meet uses projected in the local comprehensive plan, alternative facilities or modes need not be evaluated. OR. ADMIN. R. 660-012-0035(9). There are special rules for development at an “urban fringe” geared to deal with significant transportation impacts. OR. ADMIN. R. 660-012-0035 (10)-(12).
  177. OR. ADMIN. R. 660-012-0035(2). For these jurisdictions and others that choose to be bound by them, the requirements require consideration of:
    1. Increasing residential densities and establishing minimum residential densities within one quarter mile of transit lines, major regional employment areas, and major regional retail shopping areas;
    2. Increasing allowed densities in new commercial office and retail developments in designated community centers;
    3. Designating lands for neighborhood shopping centers within convenient walking and cycling distance of residential areas; and
    4. Designating land uses to provide a better balance between jobs and housing considering:
      1. The total number of jobs and total of number of housing units expected in the area or subarea;
      2. The availability of affordable housing in the area or subarea; and
      3. Provision of housing opportunities in close proximity to employment areas.
    Id. MPOs are also required to increase transportation choices and avoid reliance on the automobile through additional standards. OR. ADMIN. R. 660-012-0035(4)-(6). One of those standards is particularly relevant, metropolitan areas must reduce per capita VMT (vehicle miles travelled) over a twenty-year period by 5%. OR. ADMIN. R §660-012-0035(6).
  178. The objective of avoiding reliance upon any one mode of transportation was part of the original Goal 12, adopted in 1974. PLANNING GOALS, supra note 100, at 33. The TPR, in particular, OR. ADMIN. R. 660-012-0035(3), merely continues this policy. Moreover, following amendments to this section in 2006, there is emphasis on transportation mode choice and avoidance of reliance on a single mode of transportation. See OR. ADMIN. R. 660-012-0035 (as amended by LCDD 6-2006 (2006)).
  179. See OR. ADMIN. R. 660-012-0035(7). This subsection further provides that if the benchmarks are not met, the plan must be reconsidered to provide new or additional efforts to meet those standards. Moreover, LCDC is required to review and evaluate efforts to reduce VMT per capita, so as to increase transportation choices and reduce reliance on the automobile. OR. ADMIN. R. 660-012-0035(8).
  180. OR. ADMIN. R. 660-012-0040. There was an early controversy in 1995 over whether the state should require local governments to lower their transportation impact fees for new development when those developments are “TPR friendly.” See Memorandum from Bob Cortright, Land Use and Transportation Manager, to Land Conservation and Development Commission (Sept. 6, 1995) (on file with the author). After legislative action and reflection, LCDC retreated from that position. See id.
  181. OR. ADMIN. R. 660-012-0040(1), (2); see also Turner v. Dep’t of Transp., 348 P.3d 253, 265 (Or. Ct. App. 2015). Additionally, metropolitan areas must also adopt policies to guide selection of transportation facility and improvement projects for funding in the short-term to meet the standards and benchmarks used in the evaluation of alternatives under OR. ADMIN. R. 660-012-0035. Additionally, “[s]uch policies shall consider, and shall include among the priorities, facilities and improvements that support mixed-use, pedestrian friendly development and increased use of alternative modes.” OR. ADMIN. R. 660-012-0040(2)(d).
  182. OR. ADMIN. R. 660-012-0040(4). This exception has a basis in OR. REV. STAT. § 197.712(2)(e), the point of the cost estimates involving a tool for future development activity.
  183. OR. ADMIN. R. 660-012-0045.
  184. OR. ADMIN R. 660-012-0045(1), (2); see also Woodard v. City of Cottage Grove, 201 P.3d 210, 214-17 (Or. Ct. App., 2009). The TPR provides that, if a use is allowed outright under a plan or land use regulation, it may proceed without an appeal. If the use is discretionary or involves factual, policy or legal judgment, or has a significant impact on land use, the public agency may provide for a process for its evaluation and must allow for consolidation of multiple land use permit applications. See OR. ADMIN. R. 660-012-0050(3)(b). Moreover, certain transportation-related uses are declared ordinarily not to have a significant impact on land uses, such as operation, maintenance and repair of existing transportation facilities, dedication of right of way, authorization and construction of improvements for permitted uses and certain facilities in exclusive farm use zones. See id.
  185. See Daniel R. Mandelker, Interim Development Controls on Highway Programs: The Taking Issue, 4 J. LAND USE & ENVTL. L. 167 (1988); see also Daniel R. Mandelker, Abstracts of Articles on Corridor Preservation, 11 J. LAND USE & ENVTL. L. 609, 623-24 (1996).
  186. Airports, particularly in urban areas, have been the source of much litigation. See, e.g., Barnes v. City of Hillsboro, 61 Or LUBA 375 (2010), aff’d, 243 P.3d 139 (Or. Ct. App. 2010) (ordinance providing for airport noise easements for developments near airports as uniform condition of approval unconstitutional); Clackamas Cty. v. Gay, 986 P.2d 588 (Or. Ct. App. 1999), 934 P.2d 551 (Or. Ct. App. 1997), 890 P.2d 444 (Or. Ct. App. 1995) (series of attempts to close private airport and parachute-jumping operation); Applebee v. Washington Cty., 54 Or LUBA 364 (2007) (limitations on airport use). A further example is a series of cases involving the Port of St. Helens Airport Facility and the City of Scappoose: Zimmerman v. Land Conservation & Dev. Comm’n, 323 P.3d 368 (Or. Ct. App. 2014); Port of St. Helens v. Land Conservation & Dev. Comm’n, 996 P.2d 1014 (Or. Ct. App. 2000); Port of St. Helens v. City of Scappoose, 58 Or. LUBA 122 (2008).
  187. See OR. ADMIN. R. 660-012-0045(2).
  188. OR. ADMIN. R. 660-012-0045(3); see also OR. ADMIN. R. 660-012-0020(2)(b); OR. ADMIN. R. 660-012-0045(6).
  189. See generally e-mail from Mark Greenfield to author, supra note 115. According to Mark Greenfield, a participant in the drafting of the TPR, pedestrian and bicycle safety was particularly enhanced by the reduction in the number of cul-de-sacs, the increase in the number of bicycle and pedestrian connections, and the safer access for these modes in areas of potential conflict, such as shopping center parking lots. Id.
  190. Interview with William Blosser, supra note 26.
  191. See id.; see also Interview with Robert Cortright, supra note 14 (corroborating observations by the planner who co-authored the TPR).
  192. See OR. ADMIN. R. 660-012-0060.
  193. Interview with William Blosser, supra note 26; see also OR. ADMIN. R. 660-012-0045(5)(c)(A).
  194. OR. ADMIN. R. 660-012-0045(4).
  195. “Transit-Oriented Development (TOD)” means a mix of residential, retail and office uses and a supporting network of roads, bicycle and pedestrian ways focused on a major transit stop designed to support a high level of transit use. The key features of transit oriented development include:
    1. A mixed-use center at the transit stop, oriented principally to transit riders and pedestrian and bicycle travel from the surrounding area
    2. High density of residential development proximate to the transit stop sufficient to support transit operation and neighborhood commercial uses within the TOD
    3. A network of roads, and bicycle and pedestrian paths to support high levels of pedestrian access within the TOD and high levels of transit use.
    OR. ADM. R. 660-012-0005(29).

    Even if not designated a “transit oriented development,” the Rule has long opted for pedestrian access to and building orientation toward public transit. See Cortright Memorandum, Apr. 3, 1995, supra note 141.
  196. OR. ADMIN. R. 660-012-0045(5).
  197. OR. ADMIN. R. 660-012-0045(6).
  198. OR. ADMIN. R. 660-012-0045(7). Among the reasons given for this requirement are: “that local governments consider and reduce excessive standards for local streets and accessways in order to reduce the cost of construction, provide for more efficient use of urban land, provide for emergency vehicle access while discouraging inappropriate traffic volumes and speeds, and which accommodate convenient pedestrian and bicycle circulation.” Id.
  199. OR. ADMIN. R. 660-012-0050. This portion of the rule is now relatively uncontroversial and was slightly amended in 1998 to accommodate some procedural concerns by the Oregon Department of Transportation. See Memorandum from Robert Cortright, Transportation Planning Coordinator, to Land Conservation and Development Commission Staff Report (Nov. 10, 1998) (on file with author).
  200. OR. ADMIN. R. 660-012-0050(1) refers to OR. ADMIN. R. ch. 731, div. 15, while OR. ADMIN. R. 660-012-0050(2) deals with the regional transportation planning process.
  201. OR. ADMIN. R. 660-012-0050(3) states: “Project development addresses how a transportation facility or improvement authorized in a TSP is designed and constructed. This may or may not require land use decision-making. The focus of project development is project implementation, e.g. alignment, preliminary design and mitigation of impacts.” The rule goes on to address another issue of concern to transportation planning, that of appeals of various segments of a project from concept to construction authorization and provides: “During project development, projects authorized in an acknowledged TSP shall not be subject to further justification with regard to their need, mode, function, or general location.” Id.

    This language was added in the 2004-06 revisions to the rule to prevent collateral attacks on previously approved projects. See Staff Report and proposed rule provisions dated November 9, 2005 (on file with author).

    The rule then proceeds to clarify when a transportation project may be challenged: “Project development involves land use decision-making to the extent that issues of compliance with applicable requirements requiring interpretation or the exercise of policy or legal discretion or judgment remain outstanding at the project development phase.” OR. ADMIN. R. 660-012-0050(3)(b).

    The remainder of this subsection also deals with the scope of immunity of a project, once approved and subject to appeal. Id. In Regency Centers, LP v. Washington County, the Court of Appeals upheld LUBA’s unwillingness to determine whether a decision to remove a traffic light was, under the circumstances, a “land use decision,” leaving that matter open on remand. 335 P.3d 856, 861-62 (Or. Ct. App. 2014).
  202. OR. ADMIN. R. 660-012-0050(4). It was the Environmental Impact Statement, required under the National Environmental Policy Act that ultimately made the Mt. Hood Freeway virtually impossible. See discussion infra Part III.A.
  203. OR. ADMIN. R. 660-012-0050(5). In such a case, the public agency must either show that the needs for the project could otherwise be satisfied under the TSP or must amend the TSP to assure that the transportation system is adequate. Id.
  204. OR. ADMIN. R. 660-012-0055. Subsections (1) and (3) of this rule deal with the initial deadlines for transportation system planning adopted in 1991 for MPOs and for other comprehensive planning jurisdictions respectively. These deadlines have been adjusted over time to meet the needs of state and local governments. See, e.g., Cortright Memorandum, Apr. 3, 1995, supra note 141, at 19-20.
  205. OR. ADMIN. R. 660-012-0055. Once the local or regional plan and regulations have been acknowledged, they apply directly to land use decisions. See Woodard v. City of Cottage Grove, 201 P.3d 210, 214 (Or. Ct. App., 2009). However, regional and local governments must still comply with other applicable law.
  206. OR. ADMIN. R. 660-012-0055(4), (5)(a)-(b), (6). In particular OR. ADMIN. R. 660-012-0055(5)(b) requires non-compliant public agencies to apply the TPR even if their plans and regulations are not amended to do so. See OR. REV. STAT. § 197.646; see also Dep’t of Transp. v. Douglas Cty., 967 P.2d 901, 904-05 (Or. Ct. App. 1998).
  207. OR. ADMIN. R. 660-012-0055(7); see also Memorandum from Bob Cortright, Land Use and Transportation Planner, to the Land Use and Development Commission (Nov. 23, 1999) (on file with author). While the current rule text provides that the discretionary exemption “shall be for a period determined by the director or until the jurisdiction’s next periodic review, whichever is shorter” the effective demise of mandatory periodic review renders this period to be indefinite. Id.
  208. 4 P.3d 768 (Or. Ct. App. 2000).
  209. Id. at 770-71 (citing OR. ADMIN. R. 660-012-0055(4)(b) (now (5)(b)); OR. REV. STAT. § 197.646(1), (3)); see also Dep’t of Transp. v. Douglas Cty., 967 P.2d at 904-05.
  210. Where regional transportation planning is applicable, a local plan or land use regulation amendment supports implementation of any regional transportation strategy, policy or plan if it:
    1. Implements the strategy or plan through adoption of specific plans or zoning that authorizes uses or densities that achieve desired land use patterns
    2. Allows uses in designated centers or neighborhoods that accomplish the adopted regional vision, strategy, plan or policies; and
    3. Allows uses outside designated centers or neighborhood that either support or do not detract from implementation of desired development within nearby centers.
    OR. ADMIN. R. 660-012-0055(2).
  211. OR. ADMIN. R. 660-012-0060.
  212. See, e.g., DLCD Staff Reports to LCDC accompanying proposed amendments to this section of the rule, dated September 2 and 17, 1998 and August 5, 1999 resulting in LCDD 6-1998, filed & certified effective 10-30-98 (on file with author); LCDD 6-1999, filed & certified effective 8-6-99. The 2005 amendments discussed below resulted in LCDD 3-2005, filed & certified effective 4-11-05. This portion for the rule was again amended in 2011 to elaborate upon and clarify its provisions (and to make the process specifically applicable to zone changes), resulting in LCDD 11-2011, filed 12-30-11, certified effective 1-1-12.
  213. OR. ADMIN. R. 660-012-0060(1) defines “significantly affects” as a change that impacts a transportation facility follows:
    1. Change the functional classification of an existing or planned transportation facility (exclusive of correction of map errors in an adopted plan)
    2. Change standards implementing a functional classification system or
    3. Result in any of the effects listed in paragraphs (A) through (C) of this subsection based on projected conditions measured at the end of the planning period identified in the adopted TSP. As part of evaluating projected conditions, the amount of traffic projected to be generated within the area of the amendment may be reduced if the amendment includes an enforceable, ongoing requirement that would demonstrably limit traffic generation, including, but not limited to, transportation demand management. This reduction may diminish or completely eliminate the significant effect of the amendment.
      1. Types or levels of travel or access that are inconsistent with the functional classification of an existing or planned transportation facility
      2. Degrade the performance of an existing or planned transportation facility such that it would not meet the performance standards identified in the TSP or comprehensive plan or
      3. Degrade the performance of an existing or planned transportation facility that is otherwise projected to not meet the performance standards identified in the TSP or comprehensive plan.
    The definition is deliberately stringent, so as to require public agencies to focus on transportation impacts before they occur. Whether the land use decision “significantly affects” a transportation facility cannot be deferred to a later time. Willamette Oaks LLC v. City of Eugene, 220 P.3d 446, 448 (Or. Ct. App. 2009). Subsection (4) of this section deals with the process used to evaluate whether a “significant” effect on transportation facilities has occurred and whether the proposed response to those impacts is adequate and subsection (9) provides an expedited process for consideration of zone changes in areas with a transportation plan meeting the TPR. OR. ADMIN. R. 660-012-0060(4), (7).

    In Department of Transportation v. Coos County, 976 P.2d 68 (Or. Ct. App. 1999), respondent argued that the only ground for finding a land use action “significantly affected” a transportation facility under the then-version of the TPR was that it: “[w]ould reduce the level of service of the facility below the minimum acceptable level identified in the [Transportation System Plan (TSP)].” Id. at 70.

    However, the existing level of service in this case was at the lowest possible level and could not be reduced, thus no mitigation measures were required. Id. at 71. The Court of Appeals agreed. However, LCDC later amended the rule to include such a situation. See OR. ADMIN. R. 660-012-0060(2). In Department of Transportation v. City of Klamath Falls, 34 P.3d 667 (Or. Ct. App. 2001), the Oregon Court of Appeals applied the new provisions of the rule to a situation in which Respondent failed to amend its TSP to accommodate a new development. Respondent argued the facility would fail in any event before the end of the 20-year planning period. The court rejected the argument as the rule now emphasized vehicle/capacity ratio (i.e., the peak hour traffic volume (vehicles/hour) on a highway section, divided by the maximum volume that the highway section can handle) measurement saying:
    We conclude, as did LUBA, that, if the proposed amendment will cause the V/C ratio to be violated sooner than it otherwise would be during the planning period, it will significantly affect the facility within the meaning of OR. ADMIN. R. 660-012-0060(2)(d). It makes no sense to hold that, if it is projected that the V/C ratio will be violated at the end of the planning period, all of the amendments to plans that occur during the planning period do not need to be considered and are not subject to the provisions of OR. ADMIN. R. § 660-012-0060(1) and (2).
  214. To add emphasis to the need to address transportation facilities early in the process, the rule provides that if a plan or land use regulation results in two or more acres of additional commercial land, or does not yet comply with other portions of the TPR (or in land in the Portland Metro Area, does not meet certain street connectivity standards of Metro’s transportation plan) or would “significantly affect” a transportation facility, or local plans must be amended to include adoption of a local street plan, access management plan, future street plan, or other binding plan to provide for on-site alignment of streets or accessways with existing and planned arterial, collector, and local streets surrounding a site to provide for connectivity. OR. ADMIN. R. 660-012-0060.
  215. OR. ADMIN. R. §660-012-0060(2). These means include:
    1. Adopting measures that demonstrate allowed land uses are consistent with the planned function, capacity, and performance standards of the transportation facility.
    2. Amending the TSP or comprehensive plan to provide transportation facilities, improvements or services adequate to support the proposed land uses consistent with the requirements of this division; such amendments shall include a funding plan or mechanism consistent with section (4) or include an amendment to the transportation finance plan so that the facility, improvement, or service will be provided by the end of the planning period.
    3. Amending the TSP to modify the planned function, capacity or performance standards of the transportation facility.
    4. Providing other measures as a condition of development or through a development agreement or similar funding method, including, but not limited to, transportation system management measures or minor transportation improvements. Local governments shall, as part of the amendment, specify when measures or improvements provided pursuant to this subsection will be provided.
    5. Providing improvements that would benefit modes other than the significantly affected mode, improvements to facilities other than the significantly affected facility, or improvements at other locations, if the provider of the significantly affected facility provides a written statement that the system-wide benefits are sufficient to balance the significant effect, even though the improvements would not result in consistency for all performance standards.
    Id. These five authorized responses to a “significantly affects” determination were broadened to their current array in 2005. Moreover, the Commission provided some relief in recognizing as a sufficient response not only construction of transportation projects, but also allowance of degradation of performance standards (i.e. more congestion) and certification by ODOT or responsible local government transportation providers that a proposed project is “reasonably likely to be provided.” OR. ADMIN. R. 660-012-0060(4)(b) (D)-(E); see also Memorandum from Lane Shetterly, Director, to the Land Conservation and Development Commission (Mar. 1, 2005) (on file with author); OR. ADMIN. R. 660-012-0060 (amended by LCDD 3-2005 (2005)).

    The Oregon Court of Appeals has interpreted the rule to require mitigation measures regardless of the origin of the “significantly affects” result. See, e.g., Setniker v. Polk Cty, 260 P.3d 800, 807 (Or. Ct. App. 2011); Devin Oil v. Morrow Cty, 286 P.3d 925, 927-28 (Or. Ct. App. 2012). However, the determination of whether the mitigation measure is sufficient is immediately subject to review. Root v. Klamath Cty, 320 P.3d 631, 637-38 (Or. Ct. App. 2014); Willamette Oaks, LLC v. City of Eugene, 273 P.3d 219, 224-25 (Or. Ct. App. 2012).

    OR. ADMIN. R. 660-012-0060(6) allows these standards to be met by considering tools other than road improvements. Specifically, in providing for “mixed use, pedestrianfriendly centers or neighborhoods” defined in OR. ADMIN. R. 660-012-0060(8), local governments may assume a 10% vehicle trip reduction in both daily and peak hour counts. However, the jurisdiction must include conditions of approval that provide for on-site bicycle facilities, pedestrian connectivity and access to transit. See OR. ADMIN. R. 660-012-0045(3), (4). LCDC defends this approach in this section as follows:
    The purpose of this section is to provide an incentive for the designation and implementation of pedestrian-friendly, mixed-use centers and neighborhoods by lowering the regulatory barriers to plan amendments which accomplish this type of development. The actual trip reduction benefits of mixed-use, pedestrian-friendly development will vary from case to case and may be somewhat higher or lower than presumed pursuant to subsection (a) above. The Commission concludes that this assumption is warranted given general information about the expected effects of mixed-use, pedestrian-friendly development and its intent to encourage changes to plans and development patterns.
    OR. ADMIN. R. 660-012-0060(6)(d). In addition, subsection (3) of this section allows the Oregon Department of Transportation effectively to waive that section in noninterchange areas by written statement, provided that the (admittedly inadequate) transportation improvements mitigate the impacts of the new development.

    DLCD has opposed setting maximum standards for pedestrian circulation and access to transit, presumably proposed by the development community, in favor of allowing local governments to make those decisions and considering setting standards if there were a need to do so. Cortright Memorandum, Apr. 3, 1995, supra note 141, at 2.
  216. OR. ADMIN. R. 660-012-0060(5). The urban growth boundary (UGB) is the line that separates urban and rural uses, effectively precluding urban uses outside the boundary. An “exception” to allow such a use is extremely difficult to achieve. See Sullivan, supra note 46. That rule provision, however, is not applicable to a proposal to expand an urban growth boundary. 1000 Friends of Or. v. City of North Plains, 882 P.2d 1130, 1132 (Or. Ct. App. 1994).
  217. Jaqua v. City of Springfield, 91 P.3d 817, 826 n.9 (Or. Ct. App. 2004).
  218. In addition, the Commission may have been concerned that the application of conditions to meet this standard may fall afoul of Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994).
  219. See Memorandum from Lane Shetterly, Director, to the Land Conservation and Development Commission (Jan. 19., 2005) (on file with author) (observing the contentions of the parties as follows):

    A number of stakeholders—including local governments, the development community, ODOT, and a several legislators—expressed concern that the Jaqua holding
    [see supra note 163.] resulted in a new, unintended and excessive standard for review of plan amendments. Generally, concerned parties felt that the ruling called for
    a much more detailed matching of planned facilities and improvements with planned land uses than LCDC anticipated when it adopted the TPR in 1991. Several
    expressed concern that the ruling resulted in a sort of “concurrency” requirement — i.e. requiring that needed transportation facilities be in place before new development could be authorized. Other groups, notably 1000 Friends of Oregon, argued that the ruling was reasonable and required a careful matching of planned facilities with planned land use.
  220. OR. ADMIN. R. 660-012-0060(3), (4).
  221. OR. ADMIN. R. 660-012-0060(4)(a)(E). DLCD staff explained:
    This provision of the rule is intended to allow transportation facility providers some discretion in deciding whether or not a facility or improvement is likely to be provided. The draft rule intentionally does not provide a definition of this term. The major purpose of this requirement is to trigger additional dialogue between local governments and ODOT and other facility providers to assess whether or not facilities and improvements called for in TSPs are, in fact, likely to be provided during the planning period. This is necessary and appropriate because, as noted above, many TSPs include planned facilities and improvements that are not likely to be constructed within the planning period. This happens largely because TSPs are based on identified needs and are not financially constrained.
    Memorandum from Lane Shetterly, supra note 219, at 8.
  222. These areas are defined by OR. ADMIN. R. 660-012-0060(10)(b) as follows:
    1. With a boundary adopted by a local government * * * that has been acknowledged
    2. Entirely within an urban growth boundary
    3. With adopted plans and development regulations that allow the uses listed in [other portions of] this rule and that require new development to be consistent with the characteristics listed in [other portions of] this rule
    4. With land use regulations that do not require the provision of off-street parking, or regulations that require lower levels of off-street parking than required in other areas and allow flexibility to meet the parking requirements (e.g. count on-street parking, allow long-term leases, allow shared parking) and
    5. Located in one or more of the categories below:
      1. At least one-quarter mile from any ramp terminal intersection of existing or planned interchanges
      2. Within the area of an adopted Interchange Area Management Plan (IAMP) and consistent with the IAMP or
      3. Within one-quarter mile of a ramp terminal intersection of an existing or planned interchange if the mainline facility provider has provided written concurrence with the MMA designation as provided in subsection (c) of this section.
  223. OR. ADMIN. R. 660-012-0060(11). For ease of administration, subsection (11)(c) defines the objectives of these efforts:
    1. Industrial” means employment activities generating income from the production, handling or distribution of goods including, but not limited to, manufacturing, assembly, fabrication, processing, storage, logistics, warehousing, importation, distribution and transshipment and research and development.
    2. “Traded-sector” means industries in which member firms sell their goods or services into markets for which national or international competition exists.
    These provisions are also temporarily extended to certain small cities outside the more densely populated Willamette River Valley.
  224. OR. ADMIN. R. 660-012-0065, -0070. Locating an essentially urban facility outside an urban growth boundary is generally prohibited under Oregon law. See 1000 Friends of Or. v. Land Conservation and Dev. Comm’n, 724 P.2d 268 (Or. 1986). After significant transportation concerns arose, LCDC amended its 1991 version of the TPR in 1995 to allow certain roads planned for interurban connections to be eligible for project approval (although still requiring an exception). See Staff Report to Commission and accompanying rule revisions intra alia to OR. AMIN. R. 660-012-0065, dated March 10, 1995 (on file with author). Further adjustments were made to the rule in 2006. See Staff Report and Rule Recommendations to LCDC dated January 18, 2006 at pp. 9-10 (on file with author).
  225. OR. ADMIN. R. 660-012-0065(1) notes the Goals that form the basis for skepticism for new or enhanced transportation facilities in rural areas, i.e., those outside urban growth boundaries (UGBs): Goals 3 and 4, which seek to preserve farm and forest lands that are a major part of the state’s economy; Goal 11, which generally limits public services and facilities outside UGBs to rural needs; and Goal 14, which generally limits urban uses to areas within UGBs. See, e.g., 1000 Friends of Or, 724 P.2d (Or. 1986). For transportation uses permitted on farm land under this section, the rule requires compliance with a modified balancing process to weigh the impacts of certain transportation facilities on farm and forest practices and to choose the alternative that has the least impact on those lands in the vicinity that are devoted to farm or forest use. OR. ADMIN. R. 660-012-0065(5).

    However, a UGB expansion that does not trigger any of the “significantly affects” considerations, would not be invalid under the TPR. Citizens Against Irresponsible Growth v. Metro, 38 P.3d 956, 961-62 (Or. Ct. App. 2002).
  226. OR. ADMIN. R. 660-012-0065(3). Subsection (4) of this section also allows uses accessory to these improvements to occur. According to one expert familiar with the drafting and implementation of the rule: “In my experience, the improvements that have garnered the most attention are road realignments (subsection3(d)), new access roads and collectors (g) and facilities other than those listed that serve local travel needs (o).” E-mail from Mark Greenfield, supra note 115. While ODOT was supposed to adopt modal plans for surface pipelines and marine transportation, it has not done so to date. E- mail from Bonnie Heitsch, Oregon Department of Justice, to author (May 25, 2016) (on file with author).
  227. OR. ADMIN. R. 660-012-0065(3)(g). However, the use of these facilities is limited to two travel lanes, with private access and intersections also limited to rural needs or emergency access. Id.
  228. OR. ADMIN. R. 660-012-0065(3)(o). Again, the exclusion from the normal rigor of the policy against new transportation facilities is limited to “that necessary to support rural land uses identified in the acknowledged comprehensive plan or to provide adequate emergency access.” Id.
  229. OR. REV. STAT. § 197.932(1)(B). The TPR requires specific notice of the proposed location and alternatives and the issues at a hearing on the exception and requires that the granted exception be shown on a map. OR. ADMIN. R. 660-012-0070(9). As to substantive standards, the TPR interprets state statutory law to allow for justifications more focused on transportation needs and not providing a basis for other urbanizing aspects of their use, such as new commercial or residential uses on nearby rural lands. OR. ADMIN. R. 660-012-0070(5)-(8). A modified exceptions process is geared to provide a somewhat different review of this urban use in a rural area that does not require the skeptical and intrusive review otherwise mandated by exceptions standards in other cases. See OR. ADMIN. R. 660-012-0070(2)-(8). Moreover, because a planned road may deviate from its original location, the rule allows the designation of a general corridor location in lieu of a precisely engineered alignment. See OR. ADMIN. R. 660-012-0070, (amended by LCDD 6-2006, (2006)).
  230. OR. ADMIN. R. 660-012-0070(1). If the exception be allowed, those justifications must be supported by substantial evidence in the record of the proceedings and the findings must be incorporated in the local comprehensive plan. The TPR also changes the standard for justification for that transportation related exception to be oriented towards the justification for a transportation corridor, no greater in impact than is necessary to fulfill its function and providing a process and standards to guide the corridor design and location selection of the precise improvements. Land use regulations may provide for mitigation of impacts. OR. ADMIN. R. 660-012-0070(3).
  231. In 1000 Friends of Or. v. Yamhill Cty., 126 P.3d 684, 689-91 (Or. App. 2005), the Court of Appeals concluded that the Oregon Highway Plan was the state TSP and provided reasonable basis for an exception to allow transportation modifications in rural Yamhill County to connect the Portland Metro Area to the Oregon Coast. However, under the law at that time, the exception taken to the Goals was inadequate and the provisions of OR. ADMIN. R. 660-012-0065, -0070 were insufficient to release the county from its obligations to justify an exception under state law. On remand, LUBA said that the TPR does not require the choice of land that is “least disruptive” to agriculture, adding:
    The rule requires the county’s ESEE analysis to “determine which resource land is least productive; the ability to sustain resource uses near the proposed use; and the long-term economic impact on the general area caused by irreversible removal of the land from the resource base.” The county must consider those determinations in setting forth the “reasons why the consequences of the use at the chosen site are not significantly more adverse than would typically result from the same proposal being located in areas requiring a goal exception other than the proposed site.”

    52 Or. LUBA 428-29. LUBA also added that the economic consequences on agriculture were only a factor to be considered in allowing the facilities and that the County could weigh other factors in determining whether to approve the facility. Id.; see also Vincep v. Yamhill Cty., 171 P.3d 368, 370 (Or. Ct. App. 2007); Ooten v. Clackamas Cty., 346 P.3d 1305, 1307 (Or. Ct. App. 2015).

  232. OR. ADMIN. R. 660-012-0070(4), (5).
  233. Id.
  234. OR. ADMIN. R. 660-012-0070(10). The rule does allow for modifications of yet- nconstructed improvements within the same corridor and for “minor transportation improvements,” as defined in OR. ADMIN. R. 660-012-0005(15).
  235. Mark Greenfield describes the achievement of this balance as follows: “[A]n important reason for this [balance] is [OR. ADM. R. §] 660-12-0070(8)(b) and (c), which require identification and adoption of mitigation measures to reduce identified adverse impacts, and facility design and land use measures to minimize accessibility of rural lands from the facility.” E-mail from Mark Greenfield, supra note 115.

    Greenfield also recounts particular instances when public transportation authorities significantly modified transportation projects to avoid potential challenges under the goals and the TPR. Id.
    These policies have had significant effects on the state’s transportation planning:

    The TPR has generally had its intended effect. In last 20 years only a handful of major roadway projects involving goal exceptions have been constructed. The largest is a * * * highway bypass of the Newberg Dundee area, 20 miles SW of the Portland area. Most of the other exceptions were for new freeway interchanges. More significantly the rule has reshaped planning decisions about proposed new roads and highways improvements, triggering more careful consideration of alternatives that avoid the need for a goal exception. The City of Eugene decided to abandon a proposed peripheral highway, the West Eugene Parkway, in favor of improvements within the urban area and development of a region wide bus rapid transit system. Other cities have put aside plans for bypasses (for example, Lebanon) or new bridges (Albany) and instead decided to implement more modest improvements that can be more easily permitted and constructed. To be fair, the rules timeline corresponds with reduced funding for highway expansion projects. In simple terms, funding constraints have forced local governments to put bigger road projects on the shelf and pursue more affordable solutions.
    Interview with Robert Cortright, supra note 14; see also Terra Lingley, Implementing Oregon’s Transportation Planning Rule, in PLANNING THE PACIFIC NORTHWEST (Sterrett et al. eds., 2015); Sy Adler & Jennifer Dill, The Evolution of Transportation Planning the Portland Metropolitan Area, in THE PORTLAND EDGE (Ozawa ed., 2004).
  236. This new paradigm has been described as follows: “The Sharing Economy is a socio- economic ecosystem built around the sharing of human, physical and intellectual resources. It includes the shared creation, production, distribution, trade and consumption of goods and services by different people and organisations.” Benita Matofska, What is the Sharing Economy?, THE PEOPLE WHO SHARE, http://www.thepeoplewhoshare.com/blog/what-is-the-sharing-economy/ (last updated Sept. 1, 2016); see also The Rise of the Sharing Economy, ECONOMIST (May 9, 2013), http://www.economist.com/news/leaders/21573104-internet-everything-hire-rise-sharing-economy.
  237. Retirement communities in particular emphasize the convenience of alternative transportation. See Emily Brandon, 10 Places to Go Carless in Retirement, US NEWS MONEY (Mar. 21, 2011, 12:00 AM), http://money.usnews.com/money/retirement/articles/2011/03/21/10-places-to-go-carless-in-retirement.
  238. Dial-a-Ride services are frequently made available for seniors and the transportation disadvantaged. See, e.g., Or. Dep’t of Transp., TRIPCHECK, http://tripcheck.com/rtp-to/AZlisting/AZListing.aspx?start=247.
  239. See Mun. Research & Serv. Ctr., What are Transportation Demand Management Programs?, MRSC LOCAL GOVERNMENT SUCCESS, http://mrsc.org/Home/Explore-Topics/Transportation/Congestion-and-Mobility/Transportation-Demand-Management-(TDM).aspx (last visited Sept. 18, 2016).
  240. See, e.g., US HIGH SPEED RAIL ASS’N, http://www.ushsr.com/ (last visited Sept. 18, 2016).
  241. The retailer Amazon has proposed small package delivery by drones:
    Amazon Prime Air is a future service that will deliver packages up to five pounds in 30 minutes or less using small drones. Flying under 400 feet and weighing less than 55 pounds, Prime Air vehicles will take advantage of sophisticated “sense and avoid” technology, as well as a high degree of automation, to safely operate beyond the line of sight to distances of 10 miles or more.
    Amazon Prime Air, AMAZON, http://www.amazon.com/b?node=8037720011 (last visited Sept. 18, 2016).
  242. See, e.g., Is There a Driverless Car in Your Future?, NAT’L PUB. RADIO (May 31, 2014, 5:04 PM), http://www.npr.org/2014/05/31/317707729/is-there-a-driverless-car-in-your-future. The impact of such vehicles may well be significant, as Brian Gregor, a participant in the drafting of the TPR points out:
    Although there are many variations in how the future may play out, there are two primary scenarios. In one scenario, households own autonomous vehicles at about the same rate as they own their current vehicles. In such a scenario, the amount of VMT could greatly increase because 1) the discomfort/disutility of driving decreases so people are willing to spend more time in their vehicles, 2) people who are not able to drive (e.g. elderly, children) can travel around in autonomous vehicles, and 3) people send their cars to other locations to avoid parking costs or restrictions (e.g. send home rather than park at work, send around the block several times rather than park, send out to suburban parking lots if they live in parking restricted place). Although autonomous vehicles may increase road capacity by reducing vehicle headways, the extra VMT will offset that benefit. In the other alternative, autonomous vehicles eliminate the largest cost component of public transportation, labor, and thus make public transportation much less expensive and more widely available. Autonomous vehicles serve the collection/distribution function for high capacity transportation. In this scenario, many fewer people own cars and rely instead on public transportation services. As a result, VMT reduces, vehicles are managed more efficiently, and less road and parking space is needed in urban areas. Which scenario occurs will depend as much on how we regulate the use of autonomous vehicles as well as how the technology changes and how market forces play out.
    E-mail from Brian Gregor, supra note 133.
  243. Among other things, this alternative includes electric bicycles. Brian Gregor again urges consideration of these vehicles as a likely alternative:
    Electric bicycle use is a major mode in China and is growing rapidly in other countries (http://qz.com/137518/consumers-the-world-over-love-electric-bikes-so-why-do-us-lawmakers-hate-them). The use of light-weight electric vehicles like this (also think Segway, e-scooters, e-skateboards) could substantially reduce auto use and emissions but also require some rethinking about how the roadway system is laid out and operated. The Statewide Transportation Strategy (STS) calls for big shifts in travel from single-occupant vehicles to light-weight vehicles like bicycles in order to reduce GHG emissions. The STS anticipates that light-weight electric vehicles will make this possible.
    E-mail from Brian Gregor, supra note 133; see also Heather Timmons, Consider the e-bike: Can 200 Million Chinese be Wrong?, QUARTZ (Oct. 23, 2013), http://qz.com/137518/consumers-the-world-over-love-electric-bikes-so-why-do-us-lawmakers-hate-them/.
  244. See, e.g., Christopher Barnatt, 3D Printing, EXPLAINING THE FUTURE.COM, http://explainingthefuture.com/3dprinting.html (last updated July 6, 2016).
  245. Frank Angelo, a planner involved with implementing the TPR suggests that, alternatively, “changing the vehicle fleet to electric cars, thereby improving [air quality] and helping on the climate change front, could add to the demand for highway/road improvements. These vehicles would operate on the same roads that we use today. Driverless cars could also add to this dilemma!” E-mail from Frank Angelo, TPR Planner, to author (May 25, 2016) (on file with author).
  246. Cf. JULIA MARKOVICH & KAREN LUCAS, UNIV. OF OXFORD, THE SOCIAL AND DISTRIBUTIONAL IMPACTS OF TRANSPORT: A LITERATURE REVIEW (2011), http://www.tsu.ox.ac.uk/pubs/1055-markovich-lucas.pdf. Moreover, as transportation.
  247. Cf. OFFICE OF PLANNING, ENV’T, & REALTY, U.S. DEP’T OF TRANSP., ENVIRONMENTAL MITIGATION IN TRANSPORTATION PLANNING, CASE STUDIES IN MEETING SAFETEA-LU SECTION 6001 REQUIREMENTS (2009), https://www.environment.fhwa.dot.gov/integ/pubcase_6001.pdf.
  248. According to census data compiled in 2013, over three-quarters of Americans drive alone to work. BRIAN MCKENZIE, U.S. CENSUS BUREAU, WHO DRIVES TO WORK? COMMUTING BY AUTOMOBILE IN THE UNITED STATES: 2013 at 1 (2015), https://www.census.gov/hhes/commuting/files/2014/acs-32.pdf.
  249. Robert Cortright, the long time LCDC transportation planner says of these trends:
    A strong argument can be made that we are experiencing a fundamental change in the demand transportation as it relates to roads and personal autos. At its core, personal transportation is about getting access to goods and services, including employment and to interact with others. In the last half of the 20th century the personal automobile was the most effective way to maximize access to goods and services. Over the last 20 years, technology in the form of personal computers, smart phones and the internet (among others) have provided us with new and easier ways to access a broad range of goods and services. Activities that used to require travel simply don’t: increasingly people go “on line” to shop, get entertainment (music, movies, games) and interact with friends.

    These changes, which are widely known, have big effects on transportation. Perhaps most significantly, the link between economic growth and growth travel have become uncoupled. It used to be the case that growth in auto travel (total VMT) was a good barometer of economic growth. More auto travel was closely linked with increased production and consumption of goods and services. Several transportation economists now estimate that that link is broken and that we may have reached “peak travel.”
    Interview with Robert Cortright, supra note 14.
  250. See Jason Plautz, Congress Won’t Even Talk About Raising the Gas Tax, ATLANTIC (Nov. 4, 2015), http://www.theatlantic.com/politics/archive/2015/11/congress-wont-even-talk-about-raising-the-gas-tax/453021/; see also Chris Lehman, Oregon to Test Switching to Mileage-Based Tax, NAT’L PUB. RADIO (June 1, 2015, 5:08 AM), http://www.npr.org/2015/06/01/411138483/oregon-to-test-switching-to-mileage-based-gas-tax. Robert Cortright, the long-time LCDC transportation planner observes:
    Implementation of the TPR coincides with a major shift and reduction in public funding for roadway expansion. Through the 1980s, urban development followed major highway expansion that—along with public spending to expand sewer and water service—helped open up suburban areas to development.
    Much of this expansion of infrastructure was supported by federal funding which has since been-substantially reduced. At the same time, state and local spending for infrastructure expansion have been modest. Over the last 20 years state gas tax rate has been largely unchanged, and as a result state now has barely enough money to operate and maintain existing highways. And, at the same time, maintenance costs for an aging highway system have increased, inflation has further increased costs, and improved vehicle fuel economy have reduced revenues. * * * The result is that fewer big new roads have been built.

    Recent history suggests a lack of public support in Oregon for increasing taxes for highway construction. Any increase that does occur is likely to be modest and is likely to be focused on maintaining existing roadways, including upgrading vulnerable bridges and other structures to withstand a Cascadia subduction zone earthquake. Without a major increase in funding, significant expansion of highway capacity is unlikely.
    Interview with Robert Cortright, supra note 14.
  251. See, e.g. LEAGUE OF OR. CITIES, CITY STREET NEEDS SURVEY 2 (2014), http://www.orcities.org/Portals/17/Library/StreetNeedsSurveyJuly2014Final.pdf. This study calculates an approximate $300 million gap in deferred maintenance needs as compared to budgeted expenditures. Moreover, the need appears to be less for new capital improvements (such as another light rail line in metropolitan area) than for responding to deferred maintenance or providing operational support, particularly for transportation in non-metropolitan areas. E-mail from Ali Bonakdar, AICP, Director, Corvallis Area Metropolitan Planning Organization, to Rebecca Steckler, Program and Policy Manager, Oregon Chapter, American Planning Association (May 25, 2016) (on file with author).
  252. One such source of federal money for transportation projects is the Highway Trust Fund, supplied in part by revenue from the federal fuel tax. Status of the Highway Trust Fund, FEDERAL HIGHWAY ADMINISTRATION, https://www.fhwa.dot.gov/highwaytrustfund/ (last updated Sept. 14, 2016).
  253. As Brian Gregor, a participant in the formulation of the TPR observed:
    Oregon has been a leader in researching and testing a mileage tax system. Even congress has been considering mileage taxes (https://www.cbo.gov/publication/22059). The switch to mileage taxes has significant implications for transportation system management and transportation planning: 1) It will provide better feedback to drivers about their travel and it can be coupled with promotion of alternative modes and travel demand management. (Think about how you can now see your pattern of monthly electricity consumption in your bills and you get information on how to save electricity.) 2) It provides transportation managers and planners much better information about vehicle travel and the relationship between land use and transportation system characteristics. 3) It enables the implementation of pricing to better manage the transportation system (e.g. congestion pricing).
    E-mail from Brian Gregor, supra note 133; see also CONG. BUDGET OFFICE, ALTERNATIVE APPROACHES TO FUNDING HIGHWAYS (2011), https://www.cbo.gov/sites/default/files/112th-congress-2011-2012/reports/03-23-highwayfunding.pdf.
  254. E-mail from Brian Gregor, supra note 133. The FAST Act of 2015 appropriated from the General Fund another $51.9 billion to the Highway Account for road projects, and $18.1 billion to the Mass Transit Account for transit projects. Nevertheless, there are significant difficulties with assuming present transportation arrangements will continue. As former LCDC Chair, William Blosser, observed:
    Also, a key issue is that electric vehicles pay nothing for roads, and the increased Federal gas mileage requirements will steadily reduce the income from gas taxes (barring a significant increase in the tax itself). On an inflation-adjusted basis, I believe the Fed and State gas taxes are about half what they were when adopted originally, so inflation is a significant issue, too.
    Interview with William Blosser, supra note 26.
  255. Among other criticisms of TDM are claims that reduced vehicle travel harms consumers, that it is regressive and unfair to lower-income motorists, that it is an unjustified intervention into free markets, that TDM is harmful to economic development, that it is ineffective, and that transit improvements are excessively expensive and unjustified, which may be true in some circumstances. Evaluating TDM Criticism, TDM ENCYCLOPEDIA, http://www.vtpi.org/tdm/tdm49.htm (last updated Dec. 21, 2015); see also GENEVIEVE GIULIANO & MARTIN WACHS, UNIV. OF CAL. TRANSP. CTR., RESPONDING TO CONGESTION AND TRAFFIC GROWTH—TRANSPORTATION DEMAND MANAGEMENT, 6, 9 (1992), http://www.uctc.net/research/papers/086.pdf.
  256. TRANSP. & GROWTH MGMT. PROGRAM, OR. DEP’T OF LAND CONSERVATION & DEV., PARKING MADE EASY—A GUIDE TO MANAGING PARKING IN YOUR COMMUNITY (2013), https://www.oregon.gov/LCD/TGM/docs/parkingprimerfinal71213.pdf. The Chicago Metropolitan Agency for Planning said:
    Prices per space vary significantly between the type of structure (surface lot, aboveground, or underground) and the efficiency with which it is built (See Appendix: Factors Affecting Cost of Parking Structure). The associate vice president for facilities management at Northwestern University estimates per-space parking construction costs to average $4,000 for surface parking lots, $20,000 for above-grade garages, and $30,000 to $40,000 for below-grade garages (Northwestern University Newsletter, 2006). An efficient structure with 300 square feet per space could cost $15,000 per space, while a less efficient structure with 400 square feet per space could cost about $20,000 per space (Shoup 2005). Superior quality and design will add to those costs.
    Impacts of Parking Strategies, CMAP, http://www.cmap.illinois.gov/about/2040/supporting-materials/process-archive/strategy-papers/parking/impacts-of-parking-strategies (last visited Sept. 18, 2016).

    It appears to make infinitely more sense to plan for parking facilities near transit facilities to reduce solo auto trips and enhance transit. MATT DAVIS, INT’L PARKING INST., TRANSIT PARKING BEST PRACTICES DELIVER SUSTAINABLE BENEFITS TO PARKING FACILITIES AND COMMUNITIES 36-37 (2012), http://www.parking.org/wp-content/uploads/2016/01/TPP-2012-05-Transit-parking-best-practices-deliver-sustainable-benefits-to-parking-facilities-and-communities.pdf.
  257. DONALD SHOUP, UNIV. OF CAL. TRANSP. CTR., THE HIGH COST OF FREE PARKING (1997), www.uctc.net/research/papers/351.pdf; see also Donald Shoup, Cruising for Parking, 13 TRANSP. POL’Y 479 (2006), http://shoup.bol.ucla.edu/Cruising.pdf. Former LCDC Chair William Blosser suggests peak-pricing shopper parking may avoid this issue, so that parking structures or alternative transportation is encouraged. Interview with William Blosser, supra note 26.
  258. OR. TRANSP. & GROWTH MGMT. PROGRAM, COMMERCIAL AND MIXED USE DEVELOPMENT CODE HANDBOOK, http://www.oregon.gov/LCD/docs/publications/commmixedusecode.pdf. Oregon has adopted a process for dealing with the relationship of transportation and climate change, which may well result in significant effects on transportation facilities in the state. See OR. REV. STAT. §§ 184.888-.899.
  259. The recent oil train disaster in Mosier, Oregon on June 2, 2016 illustrates the need for planning coordination for safety as well as evaluation of alternatives. See Tony Hernandez, Oil Train Derails near Mosier in Oregon’s Columbia River Gorge, ORGONIAN (last updated June 4, 2016, 12:14 PM), http://www.oregonlive.com/pacific-northwest-news/index.ssf/2016/06/oil_train_derails_near_hood_ri.html.
  260. See OR. REV. STAT. § 197.180.
  261. NATHANMMACEK, AM. ASS’N OF STATE HIGHWAY & TRANSP. OFFICIALS, RIGHT-OF-WAY AND ENVIRONMENTAL MITIGATION COSTS—INVESTMENT NEEDS ASSESSMENT (2006), http://docplayer.net/16523058-Right-of-way-and-environmental-mitigation-costs-investment-needs-assessment.html.
  262. In Oregon, if a condemnor abandons the project after filing a suit for condemnation, the defendant is entitled to attorney fees and costs. OR. REV. STAT. § 35.335(1).
  263. The Oregon legislature, concerned over the loss of airport facilities through land use conflicts, enacted a 1995 law effectively immunizing certain existing airports, whether lawful uses or not, from local zoning regulations and allowed those airports to expand. OR. REV. STAT. §§ 836.600-.630.
  264. U.S. CONST. amend. V; OR. CONST. art. I, § 18.
  265. In Oregon for example, both property taxes and market value depend in part on plan and zoning designations. OR. Rev. STAT. § 308.235; see also PROPERTY TAX DIVISION, OR. DEP’T OF REVENUE, APPRAISAL METHODS: BASIC INFORMATION AND PROCEDURES FOR SETTING UP A MASS APPRAISAL PROGRAM 2-15 (2012), https://www.oregon.gov/DOR/forms/FormsPubs/appraisal-methods_303-415.pdf; GREGORY TILLSON, OR. STATE. UNIV. LIB., PLANNING, ZONING AND PROPERTY TAX ASSESSMENT: HOW ARE THEY RELATED (1978), http://ir.library.oregonstate.edu/xmlui/bitstream/handle/1957/24604/ECNO958.pdf?sequence=1.
  266. There are two principal means by which change is accommodated in Oregon planning. The first is through periodic review of plans and regulations under OR. REV. STAT. §§ 197.626-.639, which was a major part of that process until it was perceived as too long and costly, causing the legislature to reduce its role significantly. Sullivan, supra note 42, at 392-93. The other is the Post Acknowledgment Plan Amendment Process, which requires notice and an opportunity to be heard, but also requires participants to raise issues and undertake appeals to vindicate their land use interests. OR. REV. STAT. §§ 197.620, 763.
  267. Cf. supra note 249 and accompanying text (discussing the impact of technological advances).
  268. OR. ADMIN. R. 660-012-0060. This rule generally requires that if the local government determines a functional or comprehensive plan amendment or a land use regulation (including a zone change) would “significantly affect” an existing or planned transportation facility, that public agency must put into place measures that would ensure that the land uses allowed are “consistent with the identified function, capacity, and performance standards of the facility measured at the end of the planning period.” Id.
  269. Id. The change to allow measurement of the “significantly affect” standard at the end of the planning period (instead of any time within that period) in subsection (1) is an important accommodation to developers. So too are the balancing test in subsection (2)(e) and the relaxation of the rigor of the general rule in subsections (2)(e), (3) and (8) to (11). Id.
  270. Id. Subsection (2)(b), (d) and (e) of this rule provides for mitigation of the effects of the new use, inter alia, by provision of new transportation facilities. Id. Requiring private parties to provide or otherwise finance those facilities raises “takings” issues under federal, and probably state, constitutional law.
  271. Efraim Ben-Zadok & Dennis E. Gale, Innovation and Reform, Intentional Inaction, and Tactical Breakdown: The Implementation Record of the Florida Concurrency Policy, 36URB. AFFAIRS REV. 836 (2001), http://uar.sagepub.com/content/36/6/836.short; see also ELAINE L. SPENCER, GRAHAM & DUNN PC, CAN WE HAVE GROWTH MANAGEMENT AND TRAFFIC CONCURRENCY? 1, http://www.millernash.com/files/Uploads/Documents/Z%20226.1%20spencer_april2004.pdf; Robert H. Freilich, The Land-Use Implications of Transit-Oriented Development: Controlling the Demand Side of Transportation Congestion and Urban Sprawl, 30 URB. L. 547 (1998); supra note 15 and accompanying text (discussing Oregon’s response to “concurrency”).
  272. OR. REV. STAT. §§ 197.610-.625.
  273. OR. REV. STAT. §§ 197.626-.644.
  274. See Sullivan, supra note 42, at 392.
  275. By providing measurable standards, such as VMT per capita, by confronting and either defeating or substantially modifying large road projects (such as the Western Bypass), by insisting that changes to existing plans confront and address their transportation impacts, and by switching the emphasis from those road projects to other modes and solutions (see comments of Robert Cortright at note 221 supra.), the TPR has indeed changed the nature of transportation policy in Oregon.
    With regard to transportation facilities connecting urban areas through rural lands, the Rule has made a profound difference in transportation planning. Mark Greenfield, a participant in the drafting of the Rule and involved in its implementation observes:
    In my experience, which includes over a dozen TPR exceptions and a handful of projects involving transportation improvements permitted under OAR 660-012-0065, I have found that the “reasons” and “alternatives” requirements in OAR 660-012-0070(4)-(6) (including the requirement to justify the thresholds for analyzing the reasonableness of alternatives that do not require exceptions) and the alternatives requirement in OAR 660-012-0065(5) have had a real impact.
    Email from Mark Greenfield, supra note 115.
  276. See Adler, supra note 15, for a discussion of the Oregon version of concurrency.
  277. In evaluating the TPR, Professor Adler suggests the prescriptive policy approach was deliberately chosen to require state policy to be implemented locally:
    DLCD and ODOT, urged on by environmental activists, have woven a tightly fitting garment for local and regional planers to wear. The Oregon approach to land use and transportation problems is a planning approach; the rule constitutes a major elaboration of this planning system. LCDC has the power to structure the plans that local and regional planers must produce. It has used its power in this case, as it has in others, to attempt to strengthen the capacity of local governments to achieve urban form and transport goals in the face of growth pressures threatening to undermine the possibility of success. ODOT saw the rule as a way similarly to shore up the local capacity to protect the integrity of their investments. 1000 Friends has long deployed its legal resources as a counterweight to these pressures when it perceived a local failure to defend and advance the statewide interest.

    The rule reflects the perspective of these statewide actors. Given their shared concern with local susceptibility to capture by developers and political officials pursuing short-term gains, they wrote a detailed rule that aims to reduce the discretion available to local planers in the content of the plans they prepare and the ordinances they must draw up.
    Adler, supra note 15, at 9-10.
  278. Professor Adler summarizes the significance of the TPR as the product of a generational transition among planners and transportation engineers:
    The Oregon transportation planning rule is the first concrete manifestation of the understanding in principle worked out between leading land use and transportation planers a generation ago. Oregon planers now begin translating central tenets of planning theory into practice. A thorough evaluation of this effort is entirely appropriate.
    Adler, supra note 15, at 144.

    The TPR won the Outstanding Planning Award from the American Planning Association in 1993. History of Oregon’s Land Use Planning, OREGON.GOV, https://www.oregon.gov/LCD/pages/history.aspx (last visited Sept. 18, 2016).