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OTC raises legal questions with decision to hold key I-5 Rose Quarter meeting on the phone

Posted by on March 12th, 2020 at 5:02 pm

Story in The Oregonian.

The Oregonian reported today that the Oregon Transportation Commission (OTC) meeting slated for March 20th will be postponed due to the Covid-19 outbreak.

That’s the right decision given the state of the outbreak and current “social distancing” best practices. But the decision that caught my eye was that they plan to hold a “telephonic meeting” sometime in early April “to decide the fate of the freeway project.”

That “freeway project” is the I-5 Rose Quarter project, a highly controversial plan to spend nearly $800 million to widen I-5 and make changes to surface streets. This is a very consequential meeting where OTC members will finally make a decision about whether or not the Oregon Department of Transportation needs to do more thorough environmental analysis of the project’s impacts. The OTC delayed a vote on this subject at their December meeting and then got an earful from regional politicians at their January meeting. After cancelling their February meeting, we were supposed to finally hear their decision on March 20th.

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The possibly that the OTC could hold such a consequential vote about an expensive and contentious project without ample public participation is very concerning. It only furthers the sense of distrust and misleading public process from ODOT that has plagued this project for months.

Upon learning the news today, activist group No More Freeways PDX spokesperson Chris Smith released this statement:

“No More Freeways appreciates the Oregon Transportation Commission’s decision to postpone the upcoming hearing on the approval of the $800 Million Rose Quarter Freeway Expansion. Given the public health epidemic crisis unfolding, it’s appropriate for the agency to encourage social distancing.

The COVID-19 epidemic, however, is not an excuse to shortcut meaningful public engagement over a controversial $800 million freeway expansion with well-documented, substantial community opposition. ODOT forbade public testimony at the hearing to the state legislature earlier this month; in December, the OTC intended to vote on the Environmental Assessment in Lebanon, over eighty miles away from the site of the expansion.

The Oregon Transportation Commission can’t hide from the public behind a virus. They must postpone their vote on the Environmental Assessment until it’s safe for the dozens of concerned students, neighbors, Tubman parents, and climate advocates to deliver testimony in person in Portland to do so. No More Freeways calls on Governor Brown, who recently announced Executive Action for leadership on both climate and coronavirus concerns, to require the OTC to hold a standard, in-person hearing for a vote of such consequence.”

In The Oregonian story, ODOT Communications Manager Tom Fuller didn’t mention anything about public participation on the phone call. That’s a problem.

According to the OTC’s own bylaws (PDF), “Except as provided by law, all Commission meetings shall be conducted as public meetings and are subject to the Oregon Public Meetings Laws.”

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Oregon Public Meeting Laws (ORS 192.630) clearly state that, “All meetings of the governing body of a public body shall be open to the public and all persons shall be permitted to attend any meeting.” Furthermore, Oregon law (ORS 192.670) requires that (emphasis mine),

“When telephone or other electronic means of communication is used and the meeting is not an executive session [which this isn’t], the governing body of the public body shall make available to the public at least one place where, or at least one electronic means by which, the public can listen to the communication at the time it occurs…”

Given the importance of this meeting and the closely-watched decision they’ll be voting on, the OTC needs to either postpone the meeting until after the Covid-19 outbreak has leveled off, or be more transparent about how the public can participate in some sort of electronic meeting. The technology exists.

I’ve asked ODOT’s Fuller for clarification about the OTC’s bylaws and plans for the April meeting. I’ll update this story when I hear back.

— Jonathan Maus: (503) 706-8804, @jonathan_maus on Twitter and jonathan@bikeportland.org
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Roberta RoblesqRon SwarenJonathan Maus (Publisher/Editor)maccoinnich Recent comment authors
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SafeStreetsNow
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SafeStreetsNow

Is there an email address where I can send along my concerns about the proposed phone call? I encourage others to do the same!

No More Freeways PDX
Guest

stay tuned!

Hello, Kitty
Subscriber
Hello, Kitty

By “participate” do you mean “listen in on” (as seems to be required by the cited law), or “provide testimony at”, which does not?

David Hampsten
Guest

It’s probably obvious, but during natural disasters and health emergencies (and this virus is certainly one of them), local, regional, and central governments including those in the USA frequently and temporarily suspend constitutions and civil liberties “for the greater good.” Think about Hurricane Katrina in New Orleans, earthquakes around the world, and the current “containment” in New Rochelle NY.

My guess is the OTC is still meeting because there is some time-sensitive Federal grant deadline that hasn’t yet been suspended (and likely never will be suspended, knowing the USDOT.)

I’d like to tell you everything will be OK, but I cannot.

mh
Subscriber

The obvious (to project opponents) answer to that conflict is to do everything possible to delay it past that (unknown) deadline. Which is what everyone I know is already doing.

FDUP
Guest
FDUP

IMO, this covid virus is going to be an excuse for fascist-style crackdowns and takeovers across the board at all political and economic levels. If public participation is suspended, so too should action on non-emergency decisions that nonetheless affect large numbers of the public.

middle of the road guy
Guest
middle of the road guy

Seems like folks from both sides have no problem leveraging a good pandemic to peddle their ideologies.

Doug Allen
Guest
Doug Allen

The OTC always live-streams their meetings on YouTube, and sometimes one or more commissioners are on speaker phone, and they seem to take their video equipment with them when they leave Salem, so it looks like they can meet the open meetings law with their normal procedures.

Whether they think they can get away with avoiding public testimony, is quite another question. On the other hand, they have already heard plenty of reasons why they need to do a full EIS, so if their intent is to follow the spirit of NEPA, there probably is no need for more testimony. Perhaps they could telegraph their intent to do the right thing, and get on with it.

David Hampsten
Guest

Appointed commissions (versus elected ones) tend to be rubber-stamp bodies made up of individuals who reflect the opinions of those who appointed them – they wouldn’t be appointed otherwise. It’s a purely honorific role. They can debate issues, but they are expected to vote in line with whomever appointed them, and they usually vote in favor of what management wants (in this case, ODOT.) Appointed boards are very similar, but they (usually) have an additional fiscal or fiduciary responsibility as well.

I’m guessing that a majority of the OTC will do exactly what ODOT staff and the governor expect them to do.

If they had an official hearing in Lebanon, one should probably surmise that the project that Portlanders call the Rose Quarter expansion actually has several minor improvements between Salem and the Columbia River, in which case Lebanon would be in the geographical middle.

Jim Lee
Guest
Jim Lee

If I were a construction manager I’d worry how and when ODOT can get the concrete and rebar necessary to actually build whatever they “approve.”

Jason
Guest
Jason

* If you were a sane and rational construction manager. 😉 I imagine that the folks that want to sell this project don’t really care when they can build it, so long as they can ink the deal. Once it’s agreed, it would be more difficult to contest. In it’s current state, the project is vulnerable.

Jim Lee
Guest
Jim Lee

ODOT’s ears are still burning over the CRC failure, so they intend to ram the Rose Quarter project through at any cost, and that is to be just a prologue to a new, “improved,” CRC boondoggle. This is why a CRC dude is now director.

The greatest effect of the pandemic will be psychological. The context of our civilization is about to change. The essentials of life, death, family, will take precedence over obsessive consumption and self indulgence. The present quiet interlude will make us understand that we can live long, pleasant, productive, satisfying lives without compulsive addiction to geometrically increasing “economic growth” that deranged “economists” are determined to cram down our throats.

We dwell on the surface of a magnificent planet at the bottom of a stupendous universe. One might say that ODOT is a minor tool of the devil of consumer capitalism that is driving our incipient catastrophes, but that would be giving it too much credit. Stay tuned.

maccoinnich
Subscriber

It’s already been reported, by BikePortland and Willamette Week, that Portland Parks and Rec won’t sign the letter of concurrence related to impacts to the Esplanade. That’s required by the National Environmental Policy Act.

With that known, what is the OTC even voting on? Whether to follow federal law or not?

Ron Swaren
Guest
Ron Swaren

Why don’t you raise your ire with the City of Portland instead of ODOT? They have had this plan in the works for nine years as the N/NE Quadrant project. They have had nine years to ask for an EIS. Why did they wait until the last minute? Someone’s asleep at the wheel—or the handlebars, or the ticket machine…….

q
Guest
q

Irony–replacing a large public meeting with a phone call in order will eliminate the need for several vehicle trips, but it’s an extreme step given the impact on public participation in an almost billion-dollar decision. But if OTC can do that, it means many organizations/events/companies should easily be able to take less extreme steps that would eliminate the need for far more vehicle trips. For instance, one company that subsidizes transit passes, or allows each employee to work from home one day per month, could eliminate the need for hundreds of vehicle trips every month.

So OTC with this decision to replace a meeting with a call is proving how easy it is to reduce vehicle trips, and reducing those trips would eliminate the reasons for spending hundreds of millions on this project.

Roberta Robles
Guest
Roberta Robles

I’m going to veer off topic here, since we all know closing the ramps is a honorable solution the egos at ODOT wont submit to. My concern is the Portland Freight Committee does not allow any electronic listening at all in their meetings. And it is chaired by a woman who doesnt even live in Portland Metro, but she does run the Oregon Trucking Association. When I asked Bob Hillier for teleconferencing he said they dont have the tech. When I complained to the ombudsman Tony Green (former journalist at Oregonian) he did not do a thing g about it nor inform me of the laws around open meetings. The Cit of Portland has a lot of staffers who are not elected or accountable. This is outright fraud. The governor is directly responsible for appointing the OTC and for the current t fiasco the state of Portland congestion. They have been ignoring me for five years. Now they are playing the divide and conquer game with transport activist and Albina leaders. Strickland needs to be fired like a big wipe of overpriced toilet paper. We have some of the best transport planners in the world. There are teams of attorneys and planners billing lots of hours on your payroll taxes. #enoughisenough

Roberta Robles
Guest
Roberta Robles

I should also mention that Strickland was hand picked by State Senator Lee Beyers. Who has now completely changed his position on the Rose Quarter, because I complained to the hippies in Eugene. Your welcome. Somebody complain in KB ears, not another entitled patriarch at ODOT. Please!