HomeMy WebLinkAboutResolution No. 4786
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COUNCIL RESOLUTION NO. 4786
A RESOLUTION CONCERNING THE CITY'S RESPONSE TO THE
REMAND OF ORDINANCE NOS. 20258 AND 20259; AND
AMENDING RESOLUTION NO. 4780.
PASSED: 8/0
REJECTED:
OPPOSED:
ABSENT:
CONSIDERED: January 26, 2004
EFFECTIVE: Immediately
RESOLUTION NO. 4786
A RESOLUTION CONCERNING THE CITY'S RESPONSE TO THE
REMAND OF ORDINANCE NOS. 20258 AND 20259; AND
AMENDING RESOLUTION NO. 4780.
The City Council of the City of Eugene finds that:
A. On November 12,2003 the City Council adopted Resolution No. 4780 responding
to the remand of Ordinance Nos. 20258 and 20259 through a Remand Response and Explanation
of Findings attached as Attachment A to Resolution No. 4780 ("Remand Response").
B. Subsequent to adoption of Resolution No. 4780 issues have arisen in connection
with the Remand Response, and the Council finds that, in order to avoid a delay and litigation
costs associated with an appeal of this matter, it would be in the public interest to amend a
portion of the Remand Response in a manner that does not affect the City's legal position.
C. The City has revised its response to Subassignment of Error 2( d) as reflected in
Attachment A hereto, which should be adopted in replacement of the response to that
Subassignment of Error in Attachment A to Resolution No. 4780.
NOW, THEREFORE,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF EUGENE, a
Municipal Corporation of the State of Oregon, as follows:
Section 1. Resolution No. 4780 adopted by the City Council on November 12, 2003
is amended by replacing the response to Subassignment of Error 2( d) in the Remand Response
and Explanation of Findings attached as Attachment A thereto with the Remand Response and
Explanation of Findings to Subassignment of Error 2( d) attached as Attachment A to this
Resolution.
Section 2. The City Recorder is requested to attach a copy of this Resolution and its
attachment to Resolution No. 4780. Except as amended herein, all other provisions of
Resolution No. 4780 and Attachment A thereto remain in full force and effect.
Section 3. This Resolution shall become effective immediately upon adoption.
The foregoing Resolution adopted the 26th day of January, 2004.
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Ity Recorder
1
Resolution
Attachment A
To Resolution 4786
Remand Response and Explanation of Findings
Subassi!!nment of Error 2( d)
Petitioners argued that the local governments needed to provide findings showing that the
challenged actions are consistent with the TransPlan policies that implement OAR 660-012-
0035(5)(c)(D).
Criterion on remand:
OAR 660-012-0055(1)(a):
"(a) If by May 8, 2000, a Metropolitan Planning Organization (MPO) has not
adopted a regional transportation system plan that meets the VMT
reduction standard in 0035(4) and the metropolitan area does not have an
approved alternative standard established pursuant to 0035(5), then the
cities and counties within the metropolitan area shall prepare and adopt an
integrated land use and transportation plan as outlined in 0035(5)(c)(A)-
(E). Such a plan shall be prepared in coordination with the MPO and shall
be adopted within three years[.]" (Emphasis added.)
OAR 660-012-0035(5)(c):
"(5) The Commission may authorize metropolitan areas to use alternative
standards in place of the VMT reduction standard in 0035(4) to demonstrate
progress towards achieving reduced automobile reliance as provided for in this
section:
"* * *
"(c) If a plan using an alternative standards, approved pursuant to this rule,
is expected to result in an increase in VMT per capita, then the cities and
counties in the metropolitan area shall prepare and adopt an integrated
land use and transportation system plan including the elements listed in
(A) - (E) below. Such a plan shall be prepared in coordination with the
MPO and shall be adopted within three years of the approval of the
alternative standard: * * *."
LUBA's direction on remand:
"OAR 660-0l2-0035(5)(c) sets out detailed requirements for 'an integrated land use
and transportation plan,' * * *.
Attachment A to Resolution No. 4786 - 1
"We have some question whether [the state's administrative rules] require adoption
of the plan described in OAR 660-0l2-0035(5)(c), since respondents apparently
have an approved alternative VMT reduction standard. * * *
"Respondents do not respond to this sub assignment of error in their brief. * * *
Petitioners' approach in this subassignment of error is to fault respondents for not
addressing unnamed TransPlan policies that petitioners contend must nevertheless
exist * * *
"* * * [W]ithout some assistance from respondents, we cannot say this
subassignment of error is lacking in merit."
Response and Explanation of Findings:
The local governments' findings do not include analysis of the Modified Project's consistency
with TransPlan policies that implement OAR 660-0l2-0035(5)(c)(D) because State law did not
require that TransPlan contain such policies prior to the local government actions approving the
modified alignment of the West Eugene Parkway and such policies, therefore, did not exist in
TransPlan at that time.
As stated in the rules quoted above, there appear to be two circumstantial categories in which an
area must adopt policies that implement OAR 660-0l2-0035(5)(c)(A)-(E):
1) if the MPO has not adopted a regional transportation system plan that meets the VMT
reduction standard in 0035(4) and the metropolitan area does not have an approved
alternative standard established pursuant to 0035(5) [OAR 660-0l2-055(1)(a)]; or
2) if the MPO has adopted an alternative VMT standard that is "expected to result in an
increase in VMT per capita." [OAR 660-0l2-0035(5)(c)].
Although it is not necessary to resolve this issue to address the remand, it would appear neither
of the above circumstances exists for the TransPlan jurisdictions. TransPlan is a regional
transportation system plan that includes an approved alternative VMT standard established
pursuant to OAR 660-00l2-055(1)(a). Therefore, under this interpretation TransPlan is not
required to include the 0035(5)(c)(A)-(E) policies under the first category. Even if required,
OAR 660-0l2-0035(5)(c) would seem to eliminate the need for such policies. Another
interpretation would require TransPlan to include such policies under the first category. Further,
for the reasons discussed below, TransPlan's alternative VMT standard is not expected to result
in an increase in VMT per capita. Therefore, it is not required to include the 0035(5)(c)(A)-(E)
policies under the second category, either. Even if the provisions of the Transportation Planning
Rule (TPR) require an "integrated land use and transportation plan", the local governments were
not required to make findings on the nonexistent TransPlan policies and the LCDC actions on
TransPlan did not require inclusion of those policies prior to the local government actions
remanded by LUBA.
Attachment A to Resolution No. 4786 - 2
Chapter 4 of TransPlan contains an analysis of Daily Vehicle Miles of Travel Per Capita on page
7. It provides that "[ u ]nder the Financially Constrained TransPlan, VMT per capita decreases
slightly showing no increase over the 20-year period. The Transportation Planning Rule (TPR)
seeks no increase in VMT per capita over ten years and a 5 percent reduction over 20 years." It
also states "[a ]mendments to the TPR require areas not meeting the VMT reduction target to
seek approval from the Land Conservation and Development Commission (LCD C) for the use of
alternative measures in demonstrating reduced reliance on the automobile. This process is
discussed further in Part Three: TPR Alternate Performance Measures of this chapter."
Part Three: TPR Alternate Performance Measures of TransPlan explains:
"Oregon's Transportation Planning Rule (TPR) requires that TransPlan comply with
certain performance measures (either a Vehicle Miles Traveled per capita target or
alternative measures). As described in Table 6 (Chapter 4, Page 5), VMT per capita is
expected to remain virtually unchanged through 2015 (I-percent decrease). As a result,
the region will not meet the reduction in VMT per capita called for in the TPR. The TPR
provides that, should a plan not meet the VMT reduction targets, alternative measures can
be developed to demonstrate compliance with the TPR.
"* * *
"Alternative Performance Measures were developed to address this requirement. While
these measures have been incorporated into Table 6, a more detailed description of the
measures and related interim benchmarks are presented in Table 7. These measures were
approved by LCDC on May 4th, 2001.
More specifically, Table 6 of TransPlan (Summary of Key Performance Measures) shows that
VMT per capita is projected to decrease by 1 percent from 1995 levels. TransPlan then discusses
the approved alternative VMT standard and addresses the conditions that LCDC attached to the
alternative standards' approval. LCDC's Order approving the alternative standard is included in
TransPlan's Appendix G.
These provisions of TransPlan show that the local governments have an approved alternative
standard established pursuant to OAR 660-012-0035(5). Therefore, TransPlan is not required to
by OAR 660-012-055(1)(a) to include findings addressing OAR 660-012-0035(5)(c)(D).
Further, the TransPlan provisions discussed above show that the adopted alternative VMT
standard that is not "expected to result in an increase in VMT per capita." Therefore, TransPlan
is not required by the express language of OAR 660-012-0035(5)(c) to include policies
addressing OAR 660-012-0035(5)(c)(D) even if OAR 660-012-0055(1)(a) could be interpreted
to require actions addressing OAR 660-012-0035(5)(c). Since TransPlan was not required to
(and did not) contain a policy specifically intended to implement OAR 660-012-0035(5)(c)(D) at
the time of the local government actions remanded by LUBA, petitioners sub assignment of error
2( d) is without merit, as LUBA suggests.
Attachment A to Resolution No. 4786 - 3