After years of work to establish that the City of Portland’s transportation bureau was not following through with legal obligations outlined in what’s known as the “Bike Bill,” and with a settlement negotiated and approved by the City Attorney and top leadership at the Portland Bureau of Transportation, advocates expected this week to be one of celebration.
Instead, they’re left in limbo due to a highly unexpected move from Portland City Council.
Nonprofit BikeLoud PDX and their lead attorneys on the lawsuit — Scott Kocher of Forum Law Group and Chris Thomas of Thomas, Coon, Newton & Frost — had a date (October 15th) on the city council agenda where council members were expected to rubber-stamp what would have been one of the most consequential transportation-related legal decisions in the history of Portland. Approval of financial settlements are usually a weekly council exercise and most are subject to no debate.
Kocher and BikeLoud had already begun to plan a PR strategy around the decision when they received word from the City Attorney that the settlement had been rejected by city council.
BikeLoud filed a lawsuit against the City of Portland in 2022, alleging that PBOT had repeatedly not met requirements laid out in Oregon Revised Statute 366.514, more commonly known as the Oregon Bicycle Bill. Sponsored by a (Republican!) Oregon lawmaker in 1971, the bill sought to make sure road authorities invested a minimum of 1% of major highway project costs into bicycle and pedestrian infrastructure. More germane to this lawsuit, the law requires bicycle and pedestrian facilities whenever a street is “constructed, reconstructed, or relocated,” with narrow exceptions.
With the help of volunteer advocates from BikeLoud, Kocher painstakingly cataloged numerous completed projects where he could prove the Bike Bill should have applied, but where PBOT failed to make the required investments in bike infrastructure. City attorneys fought vociferously for dismissal of the lawsuit on grounds that BikeLoud didn’t have legal standing to pursue the case. In May 2023, a Multnomah County Judge affirmed BikeLoud’s standing and permitted them to proceed with the case.
Kocher and BikeLoud spent the last two years working on the case. They found individual plaintiffs willing to add their names to the lawsuit as being negatively impacted by the lack of bike facilities on specific roads. They participated in hours of depositions with top-level PBOT staff. And their work paid off when the City Attorney agreed to go into settlement negotiations. That process took hundreds of hours of work, and according to Kocher (who represented the case pro bono), the two sides ultimately hammered out an agreement.
From what I’ve learned, the settlement agreed to by PBOT and BikeLoud would have included several million dollars in specific planning and capital projects including: $3 million to upgrade neighborhood greenway routes used by weekly bike buses, $2 million of investments on Sandy Blvd in connection with upcoming paving and sewer projects, various commitments related to the 82nd Avenue project, and $1 million for neighborhood greenway upgrades around Hawthorne Boulevard. In addition to those investments, PBOT would also agree to an internal decision making process that would ensure compliance with the Bike Bill going forward.
Kocher told me in an interview this week both sides compromised and looked to find “win-wins” that helped cycling in general and would bolster projects and policies PBOT was already invested in.
That’s why Kocher was blindsided when he learned council voted it down.
Because these settlement decisions are not made in public city council session, I don’t have all the details on what happened. I have learned that due to quorum rules, the city holds two separate meetings with six councilors each (known as “six and six” groupings). It was in these meetings where the settlement was discussed. Councilor Sameer Kanal was one of the councilors who was uncomfortable moving it forward at this time. In a conversation last week, he said he doesn’t believe the settlement is dead, but that it’s simply been delayed so council can get questions answered.
According to Kanal, the BikeLoud settlement was complicated and unique relative to others they typically approve. Because it would force the City of Portland to make specific policy changes and project investments (something Kanal is not necessarily opposed to), Kanal believes it warrants more consideration by council.
Looming over this issue are questions of city governance. That is, what power do council members have to impact decisions already made by the administrative wing of the city? We’ve seen this play out several times in high-profile cases lately: A plan by an office overseen by Mayor Keith Wilson to remove diverters in Northwest Portland was strongly opposed by councilors who felt it was administrative overreach and that council members should have power to make that decision. A decision by PBOT and Mayor Wilson to extend paid parking hours to balance the budget was also opposed by city council members, who ultimately reversed it.
Kocher believes this is another example of tension between the administrative and legislative arms of city government.
“It’s extremely unusual for council to not approve a settlement that has been reached and recommended by the city attorney,” Kocher shared with me in an interview Thursday. “It’s concerning that it didn’t happen in a timely fashion in this case and we are trying to learn more whether this is a case of miscommunication, or whether council is actually rejecting the advice of the city attorney.”
“The settlement is the result of a multi-year litigation process,” Kocher continued. “It was reached after extensive negotiations with top-level leadership on both sides, so it’s unclear how a settlement could be reached and then not have it be approved.”
The way Kocher sees it, the settlement comes with significant benefits for both sides that will all be lost if the case goes to trial.
At this point, Kocher and BikeLoud are still in the dark and are waiting for more answers.
In the meantime, BikeLoud is planning to rally in front of City Hall this Wednesday (10/22) at 9:00 am. They plan to speak about the issue and then deliver a letter to city council. Stay tuned.
Thanks for reading.
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I agree with Kocher –
This feels (mostly) just like a flex by Council as a result of the power tensions between them and the Mayor.
…settlement decisions are not made in public city council sessions?!
What?!
In my experience, typically legal settlements / suits are discussed behind closed doors in executive session with full attendance. I understand the typical sunshine meeting rules on managing the number of council members at a public event to minimize triggering the (OR / US) open meetings law threshhold. So is the 6 + 6 format a new administrative tool not used in the past commission style of government due to the size of council AND their lack of direct management of a portfolio of departments? Jonathan (or others) can you add more about this 6×6 topic?
2 questions should be answered to provide transparency:
1) How much are the attorneys getting from taxpayers in this settlement?
2) Is Bike Loud getting a cut of the settlement?
None and no.
But, but… Homeless people! How much money is going to them?
And what about the cops? How will cops be able to do their jobs protecting me from whatever it is I’m scared of if we spend a few million dollars on bike infrastructure?
Why won’t anyone answer MY really important questions?
/s
Thanks. So just to be clear Scott Kocher of Forum Law Group and Chris Thomas of Thomas, Coon, Newton & Frost are working pro bono on this?
Yes
Read the story for the answers to your inquiries.
Can anyone explain why the Council feels the need to avoid quorum rules by meeting six-at-a-time? Are discussions about settlements delicate enough to warrant such secrecy? If they’re not satisfying quorum, how the heck did they already vote on it?
I understand that “settlements” often (usually?) means paying out to family members of people killed by police, or unjust termination of City employees, etc.
Maybe secrecy should apply to that category of meeting, but a discussion about a settlement that will determine PBOT funding and roadway safety seems unambiguously in the public interest.
I can’t wait to learn more!
I get the concept of “executive session” to discuss confidential legal issues or serious HR issues, but the 6 +6 meeting to discuss the settlememt seems like intentional lack of transparency…either it’s an exec sess, or not. Our new city council is not doing us any favors.
I’m wondering what these completed projects are?
I think one of them is the Hawthorne Blvd pave and paint 4-5 years ago. There were going to be bike lanes but they were scrapped for “equity” (this place rules lol) because they would apparently slow down buses. They made some improvements to the Lincoln-Harrison greenway, maybe in return, maybe separately, but I guess Bikeloud isn’t happy with that.
in the past paving projects were NOT considered to trigger Bike Bill requirements (not roadway reconstruction, I guess), but I don’t know if this was ever challenged, could just have been an ODoT opinion.
SW residents reported failure to install infrastructure when a major road washed out… twice! I’m sure there are dozens of examples across the city, and I too would like to see the list.
If you are talking about road wash outs, those are going to almost exclusively be in SW Portland. Infrastructure costs for the city are significantly higher in the west hills.
You can read through the projects named in the lawsuit here: https://bikeportland.org/wp-content/uploads/2023/07/2023-07-20-BikeLoud-Amended-Complaint-FINAL.pdf
I don’t know a lot about most of these projects, but one is SE Division, from 10th to 39th. If anyone understands why the existence of Clinton Street does not relieve PBOT from requirements of the bike bill on that project, I would love an explanation.
Probably depends on your interpretation of parallel routes. I don’t think SE Division from 10th to Chavez is the strongest candidate, but I do think the entirety of Slabtown and Hawthorne are. I’m sure part of the settlement process from the city’s perspective involves weighing the merits of the case if it came to trial, and given the response from the city attorney it should be obvious the case has merit. Specific corridors not being all the strong of contributors to the case isn’t all that relevant.
Clinton is about as good a parallel route as can be; if that doesn’t suffice, nothing would.
As I pointed out in another comment, “having merit” is not the only reason the city might agree to settle a case that compelled them to do something they wanted to do but didn’t have political support for. But since the plaintiffs listed that corridor, they must have thought there was some there there unless they were just padding their list.
But what I’m asking for is the strongest case you could make that Division violated the bike bill. Surely the plaintiffs were prepared to stand before a judge and make a case for each of the projects.
And Hawthorne? I always thought repaving projects were exempt from the law. If this settlement changes that, it would be very consequential.
I’d be shocked if the Portland City Attorney settled a case for political cover reasons, especially given that the settlement doesn’t strike me as politically controversial. Portland tends to have a pretty conservative legal arm, as do most cities.
I don’t know what the justification for including Division is. You could try asking the folks who filed the suit. I’m just saying that the presence of any one corridor isn’t all that relevant to why the case went to a settlement in the first place.
That’s what I was trying to do 🙂
On Division PBOT would have been required to put in at least painted bike lanes. The sharrows and traffic circles on Clinton are a much lower standard and likely were not yet approved in the MUTCD when they were implemented.
The other thing to keep in mind that the improvements on Division are designed so that all users can access local businesses and homes safely, not just walkers and car drivers. Clinton is essentially a bicycle bypass route for Division but it does not provide direct access.
“Access” is not part of the Bike Bill. I’m interested in the legal argument, not a moral one about whether parallel routes provide sufficient access. (On that question, they work great for me, but I realize others disagree.)
thanks Eva, very interesting.
Thank you for the list. Quite a few of these from the list are projects that ODOT or Multnomah County contracted out and paid for (likely PBOT was a contractor), then the city later acquired/inherited/received during annexation (from the county) or later (from ODOT projects – e.g. 82nd).
I’m surprised they didn’t add all the viaduct projects that PBOT is constantly working on, roadways that go over long-buried culverts, sides of hills, old tunnels, and so on. There’s well over 100 of them all over the city.
Both ODOT and Multnomah County were pretty good at adding painted bike lanes on most of their projects, but they frequently didn’t do them on bridges over other highways. ODOT even built bike paths along some of the freeways.
Initial list from the lawsuit (pp 12-13):
a) The “Hoyt Yards” area of the Pearl District in Northwest Portland, which comprises at least 24 complete city blocks, and was constructed entirely without bicycle facilities;
b) NW 13th Avenue;
c) NW Kearney and NW Johnson from 9th to Station Way;
d) NW 23rd Ave south of Lovejoy St and the NW Vaughn St intersection;
e) NW Savier St east of NW Aspen Ave;
f) NE Killingsworth from Commercial to MLK;
g) NE MLK at Columbia (intersection);
h) NE Lombard from St Louis to Richmond;
i) NE Everett Ct from NE 97th Ave to NE 99th Ave
j) NE 33rd Avenue over NE Lombard St which was constructed and/or reconstructed without bicycle facilities, and in part without pedestrian facilities;
k) NE Thompson E of 149th;
l) NE San Rafael from 148th to 162nd;
m) NE 46th Ave north of Columbia;
n) NE Couch and Davis East of 97th Ave and 97th Ave;
o) NE 136th between Whitaker Way and Prescott Ct;
p) NE and SE 82nd Ave;
q) Overpasses over I-205 at SE Market; NE Glisan; NE Prescott, NE Sandy;
r) SE Hawthorne Blvd;
s) SE Division St from SE 10th to SE Cesar Chavez;
t) SE 118th Ave from Pardee to Raymond; and
u) SW 11th from Gibbs to Gaines.
My comments:
k) & l) are from the Summerplace seniors-only planned unit development (PUD) and were likely built by the developer to Multnomah County specifications prior annexation. This section of San Rafael was one of my favorite places to bike when I lived in East Portland, it is a beautiful tree-lined street.
i) & n) are LIDs (local improvement districts in which current property owners pay a share of the construction costs) in the Gateway Urban Renewal Area. As of last May, Couch still hadn’t been constructed.
o) This is also an LID, in the industrial area north of Sandy.
t) This was actually built and paid for by the Bureau of Environmental Services (BES).
q) This was built by Mutnomah County and ODOT prior to annexation. It was always a mystery why neither the county nor ODOT added bikes lanes on them, they eventually did it on Sandy and on Burnside after much cajoling.
It seems past time to journalistically treat the council as a hostile agency that has institutionalized a lack of transparency and is inimical to the safety of vulnerable road users. It’s time to treat them as you treat the PPB and stop making excuses for their dangerous and self serving agenda.
There’s one other possibility: What if the council rejected the settlement cuz they want the case to go to trial? Or maybe they want to use it as leverage to change the way the city operates?
In any case they have ensured that instead of the case being settled in a one-off manner, the story will churn on – they have made sure the story has legs.
Always a possibility.
However, they are in charge so seven of them can change the way the city operates. They don’t need to wait for a court case. But, they might be too busy planning their next foreign junket to make positive changes.
I’m so happy that our new City Council has found yet another way to skirt open meetings laws.
Let the sunshine stream in!
It’s almost like some of us were trying to warn y’all not to vote yes on the charter amendment. Did anyone that voted yes even think this through?
I’d guess that, if Portlanders had not changed the city charter, commenters would be on here complaining about something the Council (in its pre-charter-reform size) had done. Maybe even the same thing!
That’s not to say that the new form of government is 100% better in every regard, but rather that, I am just not moved at all by the frequent “I told you so” comments about anything bad the Council is involved in. Like, you think things would be better with Gonzalez running the Fire Bureau? Or Hardesty running PBOT?
Charter reform represents an honest and thoughtful attempt at *improving* local government structure. Give them a few years to figure out how it all works, and remember that the old Council sucked, too.
I’m not against change, it needed to change, but this specific charter that we voted on was a poison pill for Portland.
An even amount of council members so nothing can get done, way too many council members (12!) resulting in sub factions engaging in back room deals, a style of rank choice voting that seemed like it was designed to deliver us mediocre council members, a mayor stripped of any real power, an unelected city administrator with too much power…
We had an amazing opportunity to finally reform how our government should function and we blew it.
The mayor breaks ties. “Nothing” is getting done at city hall?
“Too many” councilors is subjective, but, anyway, how does the number of councilors create more or less “back room deals”?
In the last election it was found that ranked-choice voting had little impact on who was elected
What is mayoral “real power”?
“Too much power” is subjective as well; the (elected) mayor nominating the city administrator, then the (elected) city councilors choosing the city administrator, is a robust democratic system of hiring.
Give is your list of things that got done in the last 9 months by the New 12 person council besides a $50,000 trip to Europe.
What is your list of things they should have gotten done that could reasonably be expected for them to get done in 9 months (given working out a new form of government, etc).
I’m always curious what people expect when they say stuff like this, so examples welcome.
I agree that three councilors per district is two too many. It’s ridiculous that I have to write to three people to get anything done. So maybe each district needs to be broken into three parts? Portland should look at what other FUNCTIONAL cities are doing and adjust accordingly.
Totally agree that one councilor per district would be a great place to start fixing the fix.
The three per district just seems designed to avoid responsibility for that district.
“In the last election it was found that ranked-choice voting had little impact on who was elected”
How was this determined? I don’t think that can actually be known. Best we can do is poll people for satisfaction immediately after the election. Maybe that’s what they did?
Whether or not candidates won in the first round doesn’t tell you if ranked choice made a difference. One of the best arguments (IMO) for ranked choice is it allows people to safely vote for who they want to win, as opposed to strategic voting. It’s not surprising that it still leads to candidates winning in the first round, but the outcome may be different than it otherwise would. Which is a great thing, I think, even if a different specific voting system would have been better.
Every time someone tells me to “wait a few years” for all the kinks to be worked out, several hundred people who would have benefitted from real transparency and a citizen-forward approach to policy-making leave, or die, because they couldn’t get their needs met.
While we can’t make things right for everyone, we should be able to make things right for most people, and in a timely manner.
And don’t blame it on Portland’s growth! Much larger cities with many more problems to solve somehow manage to do more of what Portland’s current leadership cannot, because too many of the current leadership are chasing after global dramas they’re not empowered to resolve, or looking for more ways to ensure their own employment while things burn down around them.
A city council who can’t meet the needs of its citizens is a straight-up failure.
In a place as full as talent as Portland is there is zero reason to re-elect any of the current council. Odds are though most of them will be re-elected somehow. With the bureaucracy held down by professionals (for good or bad) and all the legislative rules still being made up, there is little argument to keep a councilor because of institutional knowledge. There is no reason to keep one because of all the good they have done as they haven’t done much. Just remember the first thing they did was vote for more money and employees for themselves so they would have more funds for doing even less.
This is comment of the week except Portland population has not grown. The population is stable or lower than in 2020.
‘It’s even more of a failure.
I’m still happy with my “Yes” vote on the charter. Obviously there are some kinks being worked out but I still want professionals running city agenices, not activist hacks who manage to get elected and then cause havoc.
There have been a series of settlements with the city over the years that feel a bit weird to me. An example is the lawsuit about campers blocking the sidewalks, where, as part of the settlement, the mayor agreed to clear obstructing camps. But the mayor wanted to do that anyway, and by making that part of a lawsuit settlement, it gave him political and legal cover (“we have to clear you out, the court ordered it!”) It felt like an end run around political accountability, and a bit like a ploy — you sue me, I’ll settle, and we’ll confound our political opponents.
This settlement has a similar feel — I’m happy PBOT will agree to follow the law moving forward (are they admitting to not doing so in the past?) but the spending portion feels a bit like setting policy by legal fiat.
Of course, since the discussions were held in the observation-proof 6+6 format, we may never know what council is really thinking.
Yet I still see homeless camps routinely blocking sidewalks—-forcing pedestrians to walk or roll in the street. Doesn’t seem like the settlement has improved anything for the disabled or the rest of us able bodied pedestrians.
Has it struck anyone that the peacock councilors are just power hungry? Pretty old-fashioned and succinct explanation for this.
You mean how the so called peacocks (aka social justice warrior types) aren’t really for equity and justice as they claimed to get elected! Don’t say it’s so!
Executive Sessions are required for all official commissions (including all-volunteer ones) to discuss contracts, vendor bids, lawsuits, sensitive personnel issues, police misconduct allegations, and anything else that might result in additional lawsuits with the city. It’s what is known as a “necessary evil” of civil government. Usually detailed minutes are taken of such sessions, lawyers are present and managing the meetings (making sure the meeting follow certain legal guidelines), and the minutes are usually released to the public later on (between a week later and three months later depending how sensitive the information is.) The 6+6 is designed specifically to keep the councilors from having a quorum and being able to make decisions during these executive sessions.
Exec sessions are allowed to have the full board/council/commission, so that they all hear the same information and are privy to questions or comments made by other members. They are not allowed to make decisions in exec session, however.
You are correct. Someone should sue the city to force the council to make decisions lawfully.
this is still going on? what will it take for portlanders to take over their city?
We already have armed, masked men in the streets. You want more of that?
Would be great if antifa and the other activists and protesters would focus their efforts on a government that their attentions could actually affect to make positive changes. Think local, act local.
Antifa is as much an organization as Christianity is an organization.
No one’s buying that no responsibility fantasy these days. It just makes it hard to take anyone who says something so blatantly untrue seriously.
Pretending it’s not an organization defies reality and is embarrassingly similar to the other democrat “mystery” group of the reconstruction era that also had a single color uniform and wore masks.
“Nothing to see here, just a bunch of good ole boys showing up by sheer chance at the same place and same time with gasoline and timber (or in the modern variation all the signs with the same messaging).”
Go sign up with RoseCityAntifa and you too can be part of the organized club and find out where your skinny jean wearing self can do the most good for the cause. Someone is paying for all those signs, costumes and equipment.
https://www.msn.com/en-us/news/other/antifa-leaders-flee-america-as-trump-cracks-down-on-domestic-terrorist-networks/ar-AA1O8BzL
I agree with part of your sentiment however, many of the faithful do seem to treat antifa like a religion.
That someone makes or belongs to an organization called rose city antifa, or engages in or violent direct action, is not the same as someone saying they are anti fascist. Would you agree on that?
Can we agree that to be a patriotic American is to be against fascism?
Can we agree that fascism is the antithesis of everything this country stands for?
Can we agree that being against fascism is anti fascist?
Can we agree that antifa is short for anti fascist?
I mention Christianity because even if there are Christian organizations, or people that do very horrific things in the name of Christianity, it still doesn’t mean that Christianity is a terrorist organization.
Do you agree that Christianity is not a terrorist organization?
Can we agree that one can oppose fascism and also oppose antifa (even to the point of seeing it as an oppressive movement in its own right?)
If you want to define “antifa” as being “opposed to fascism” then just used the second phrase and avoid the controversy. They’re the same thing, right?
But, of course, they’re not, which is why you don’t.
Its nice to see Watts and Jake join Kristi Noem in spreading lies….
Please tell us the damage being done currently in Portland by an “official” Antifa organization compared to the Fed officials operating in the city?
Which side do you think the majority of regular folks in Portland side with?
Do you and Jake think we are all terrorists like the WH spokesperson says?
You are hilarious, whatabouting the Naked bike riders with ICE.
Hi Jake, I shortened your comment for clarity:
Would be great if people would focus their efforts on my conservative priorities…. Think local, act conservative.
I appreciate it. Did you take another screen shot of it like my past posts?
Why is it that so much energy goes into national and international events and the day to day events that would actually bring about positive change gets ignored?
I’ve asked this before, but where are the huge marches to protest all the tragic and unnecessary traffic deaths in Portland? Why does a “No Kings” rally draw thousands and accomplishes nothing except help out costume sales?
Do people just not care about real tragedy? It’s only fun if it’s nebulous?
Whyaboutism with a bit of sealioning.
I’m confused about why this is a complicated case (hundreds of hours and years of work) and why the city has any leverage here.
It seems like a very straightforward and objective accounting question: has the city hit that 1% threshold or not. If so they’re in the clear; if not they’re in the wrong and face whatever consequences.
I guess there’s questions about things like what counts as a street being “constructed, reconstructed, or relocated”, what qualifies as an exception, and what counts as spending on “bicycle and pedestrian infrastructure”, but those things don’t seem like they actually add enough complexity to drag things out this much.
Moving forward I feel like it’d be good to require city accounting staff to keep track of this stuff and publish it in some sort of online dashboard that is easy for people like us to follow along with. And for some government body or office to be responsible for enforcing things.
I think there’s a good chance that there’s a lot that I’m missing and that my proposals aren’t actually good ones. I’m just thinking out loud and if I am missing things, I’m curious about what they are.