DLCD Responds to Questions Raised at WEA Joint Committee
The Department of Land Conservation and Development (DLCD) developed the Climate Friendly and Equitable Communities (CFEC) program to reduce climate pollution, increase transportation and housing choices, and create more equitable outcomes. DLCD is providing this resource as a follow up to questions raised at the Westside Economic Alliance’s Joint Committee forum, held November 15, 2022.
To view the Joint Committee, click here.
Below are DLCD's responses to some of the questions asked at the Joint Committee.
1. Does the CFEC program allow local governments to require ADA parking spaces?
Yes. The rules specifically exclude ADA spaces from the definition of parking spaces being referred to in the rules. Thus, nothing in the rules limits the ability of local governments to require ADA spaces to be built with new development. The number of spaces local governments may require is set by Oregon Revised Statutes (ORS) 447.233 and Oregon’s state building code. The Department is continuing to work with local governments, the Building Codes Division, ODOT, and disability advocates to explore options for local governments that go beyond the current limits in building code and state law, including dedicated on-street spaces, public lots, private lots, improved enforcement, and providing data on the demand for such spaces to builders.
2. The CFEC program requires local governments to prioritize investments in bicycle and pedestrian infrastructure within ¼ mile of schools. In some cases, this may result in disinvestment in areas that are in greater need of these investments. How can local governments ensure these investments are equitably distributed?
The rules do not limit the prioritization of bicycle and pedestrian infrastructure to school areas. OAR 660-012-0505 and 660-012-0605 set minimum requirements for pedestrian and bicycle system inventories, respectively. These rules require inventories to include facilities within ¼ mile of schools, in addition to other categories. Local governments are welcome, and encouraged, to include inventories of other areas as well.
The rules only set a minimum. Cities and counties in the Portland metropolitan area may use inventory requirements set by Metro rather than those in the rules, as provided in OAR 660-012-0140(6). DLCD and ODOT will be rolling out a multi-modal inventory program to support enhanced planning for pedestrian and bicycle facilities. This information will help local governments meet the requirements to plan for pedestrian facilities in OAR 660-012-0310(3)(b)(C), bicycle facilities in 0410(2), and performance measures in 0905(b)(A) which specifically require inventories and planning for underserved neighborhoods.
3. Communities haven’t always had great success when limiting parking, particularly when combined with small lots, such as the Holladay development in Cornelius. Won’t the CFEC program simply produce more of these results?
As DLCD staff understand the description provided by Mayor Dalin, the Holladay development in Cornelius was a small-lot development with parking maximums. For most cities, including Cornelius, nothing in the CFEC rules changes parking maximums. For larger cities, the rules set some limited parking maximums, generally in line with Metro’s pre-existing maximums. There are no specific requirements for single-unit, townhome, and duplex developments like Holladay. The CFEC program is heavily focused on reforming parking minimums. These are government mandates to build more parking than what the market may demand. DLCD has put together this summary of what happens when mandates are removed, based on two decades of data. One can see, for example, that Cornelius builders typically provide more than one parking space per new single-unit home, even when only one space is required.
4. Does the CFEC program allow cycle-tracks?
Yes. The rules use the term “separated or protected bicycle facilities.” This is defined in OAR 660-012-0005(43) as “bicycle facilities that are physically separated or protected from motor vehicle traffic by barriers that inhibit intrusion into the bicycle facility. Protection may include parked motor vehicles. Separated or protected bicycle facilities may be unidirectional or twoway. Separated or protected bicycle facilities are designed to address conflicting traffic at intersections and other vehicular accesses to the street or highway.” Staff developed and refined this definition over the course of the rulemaking with extensive comment from local governments, advocates, and ODOT pedestrian and bicycle staff. DLCD staff believes that a curb-protected cycle track meets this definition if intersection treatments address conflicting traffic.
5. How can communities plan to incorporate a vehicle miles travelled (VMT) per capita standard? Local governments generally use a volume to capacity (V/C) ratio approach in their transportation system plans (TSPs). Is there any guidance on incorporating a VMT per capita standard? Are there case studies we can learn from?
The rules still allow communities to use volume to capacity (V/C) ratio in their transportation system plans (TSPs). OAR 660-012-0215 only requires that local governments must use two or more standards to review plan amendments. Communities can incorporate a vehicle miles travelled (VMT) per capita standard through various means. Metro and ODOT Region 1 are developing an update to the regional mobility policy which will likely include a VMT standard. Specifically, ODOT is leading an update to their Analysis Procedures Manual and guidance that will support local governments to incorporate VMT per capita reductions in their work. Case studies can be found here from California’s work on a VMT reduction standard from SB 743 passed in 2013.
6. The CFEC program is quite prescriptive in some rules. One example is how a community must prune its street trees. Should there be more flexibility in the program?
While the rules do not prescribe how to prune street trees, they set a minimum standard based on national tree care professional standards. Any local tree care standard that meets or exceeds that standard also is acceptable. This is no different than national engineering standards required to be met for roadway construction or state and national standards for building construction. Tree canopy is a key equity and livability issue raised before and during the rulemaking process. A healthy tree canopy helps reduce harmful, too often fatal, urban heat island effects and boosts air quality and community value.
7. The CFEC program seems to prevent local governments from implementing transportation improvements related to development. For example, are local governments permitted to add a lane to a roadway?
Local governments are still permitted to add a lane to a roadway. The rules do not prevent those functions. The rules include an updated requirement to review certain street capacity projects which can add to greenhouse gas emissions. OAR 660-012-0830 provides for which kinds of projects must be reviewed, and how the reviews are undertaken. Reviews are intended to allow for ranges of alternatives to be considered ahead of potentially planning for street capacity increase projects. Projects that do not require a review include any project that costs less than $5 million, facilities with one travel lane in each direction with or without turn lane, intersection improvements, roundabouts, access management, safety needs, and operational changes. Existing projects in acknowledged plans need not be reviewed prior to development and construction until the time of a major transportation system plan update. This rule only applies once a local government makes a major update to their transportation system plan.
8. Communities are not one-size-fits-all and it would have been helpful to have DLCD staff visit our communities during rulemaking. For example, city of Cornelius asked staff to visit and see on-the-ground parking conditions but were turned down.
DLCD strongly agrees in the value of understanding local conditions. At the request of local cities, staff spent several hours touring, photographing, and studying parking conditions in Cornelius and Sherwood this April, before rules adoption. Visiting earlier was not possible due to the Covid travel restrictions for state employees. In Cornelius, staff visited locations identified by city staff as the most critical, and met with local residents recruited by the city. In Sherwood, staff toured the city with local planning staff, seeing locations highlighted by concerned councilors. In August, staff toured Tualatin with a local city councilor to review parking conditions there. Staff are open to taking additional trips to best understand conditions. We will continue to strive to accept invitations to review on the ground conditions.
9. The CFEC program doesn’t address other infrastructure such as sewer and water. What doesthis mean for local governments who will be implementing the rules in their 2040 centers?
The department expects local governments to plan for infrastructure using existing rules, including OAR chapter 660, division 11, and statewide planning goals, including Goal 11: Public Facility Plans. Local governments needing assistance with local infrastructure planning should contact their DLCD regional representative and regional solutions team members. Local governments within the Portland Metro region may also consult with Metro regarding infrastructure planning for 2040 centers. For transportation system reviews in conjunction with amendments to comprehensive plans, zoning, or land use regulations within 2040 centers, we encourage local governments to refer to OAR 660-012-0325.
10. Cities and developers tend to jointly fund road projects. Does the CFEC program, and specifically rule 0180, allow for this?
Yes. The updated rules introduce a financially-constrained project list requirement to local TSPs in OAR 660-012-0180. This means that only projects on the financially-constrained list may be developed. During the rulemaking process, the department received input that projects that come with development would be difficult to anticipate in a financially-constrained list. The provision in OAR 660-012-0180(2)(b) was added to allow for these projects to be built. 0180(2)(b) reads: “Cities and counties may permit projects on the unconstrained project list but not on the financially-constrained list to be constructed if the project is built by a property owner as a requirement of land development and the project would not require review as provided in OAR 660-012-0830.” This provision says the project must be “built by a property owner as a requirement of land development,” it does not limit the source of funding for the project, which could come from a mix of sources.
11. The CFEC program seems to assume authority that local governments don’t always have. For example, rule 0810 seems to require local governments to plan for freeways, which they don’t have authority to do.
Oregon’s statewide land use planning program provides for a partnership between the state, including all its agencies, and local governments. State agencies are required to act consistently with local comprehensive plans. ODOT has certain responsibilities and authorities granted by statute which may not be abrogated by these rules. However, ODOT must also act consistently with local plans developed consistently with the statewide planning goals, in accordance with the agency’s coordination program. All facilities and proposed projects within a local government’s planning jurisdiction must be accounted for in the local comprehensive plan, regardless of facility jurisdiction. These rules, including this specific provision, were developed in close coordination with ODOT staff.
12. The CFEC program assumes communities have robust options for non-auto travel modes, although this is typically not the case. Why don’t the rules require any improvements to transit?
While department staff and commissioners are aware of the need for more transit service, the commission does not have authority over transit districts and cannot require certain service levels. The rules are developed to implement the Statewide Transportation Strategy, which, in part, expects the future quadrupling of transit service in urban areas. The rules are written to align local land use plans with the substantial increases in transit service that are expected to occur in the future.
High quality transit service depends on transit supportive development patterns. The rules focus on ensuring that key transit corridors are identified. Along these key transit corridors local governments must set transit-supportive land use requirements, and plan for transit priority in the right of way. These activities are properly the role of local governments and not transit service providers. DLCD staff developed the rules in consultation with local governments, transit service providers, and ODOT public transit staff.
13. It’s our understanding that the first complete draft of the 100-page rule was released this January. This didn’t give us much time to review it.
The first parts of the rule language were published nearly two years ago in January 2021. Other parts were published in concept form July 2, 2021. Additional rules language was published in August and September 2021, and a complete draft of rules on October 22, 2021, nine months before the final rules were adopted by the Commission. Additional revisions were made in response to feedback throughout that period.
For more information on DLCD or to sign up for their notices see their website: www.oregon.gov/lcd/CL/Pages/CFEC.