U.S. Court of Appeals 9th Cir. Reviews King County Metro Ad Policy: Controversial Terrorism Ad Gets a Pass

In Am. Freedom Def. Initiative v. King County, 904 F.3d 1126, 1129 (9th Cir. 2018), the court reviews King County Metro's denial of a request to post a controversial ad on a King County Metro (hereinafter, "County" or "Metro") bus. 

The court followed past decisions holding that a transit advertising program is a nonpublic forum.  Consequently, the higher First Amendment freedom of expression standard of strict scrutiny does not apply; instead, Metro's policies must be reasonable and viewpoint neutral.  On its face, the court held that two of the three prohibited content policies by Metro were valid on its face.  However, Metro's prohibited category related to demeaning or disparaging content was invalid, and Metro's application of the harmful or disruptive content category was improper.

Ad denied by Metro is similar to this ad by U.S. State Department. Source: SeattlePI

Procedural

A three-judge 9th Cir. panel reviewed an appeal from the U.S. Dist. Court for the Western District of Washington.

The panel affirmed in part and reversed in part.

Facts

Metro accepts ads for public display unless the ads contain certain categories of prohibited content, including false statements, disparaging material, and content that may disrupt the transit system.

Metro determined that Plaintiffs' ad concerning global terrorism contained all three types of prohibited content under Metro's policy: (1) False or Misleading, (2) Demeaning or Disparaging, and (3) Harmful or Disruptive to Transit System. Plaintiffs then submitted a revised, factually accurate ad, which the County rejected under the remaining two categories.

The falsity clause in Metro's transit advertising policy states that Metro will reject any ad that is:

False or Misleading. Any material that is or that the sponsor reasonably should have known is false, fraudulent, misleading, deceptive or would constitute a tort of defamation or invasion of privacy.

The panel concluded that "[t]he falsity standard meets constitutional scrutiny, both facially and as applied."

The disparagement clause in Metro's transit advertising policy states that Metro will reject any ad that is:

Demeaning or Disparaging. Advertising that contains material that demeans or disparages an individual, group of individuals or entity. For purposes of determining whether an advertisement contains such material, the County will determine whether a reasonably prudent person, knowledgeable of the County's ridership and using prevailing community standards, would believe that the advertisement contains material that ridicules or mocks, is abusive or hostile to, or debases the dignity or stature of any individual, group of individuals or entity.

The panel concluded that the "disparagement standard discriminates, on its face, on the basis of viewpoint."

The disruption clause in Metro's transit advertising policy states that Metro will reject any ad that is:

Harmful or Disruptive to Transit System. Advertising that contains material that is so objectionable as to be reasonably foreseeable that it will result in harm to, disruption of or interference with the transportation system. For purposes of determining whether an advertisement contains such material, the County will determine whether a reasonably prudent person, knowledgeable of the County's ridership and using prevailing community standards, would believe that the material is so objectionable that it is reasonably foreseeable that it will result in harm to, disruption of or interference with the transportation system.

The panel held that "the disruption clause, like the earlier one, survives facial scrutiny."

Holdings

(1) Metro permissibly rejected the factually inaccurate ad because the First Amendment does not require Metro to display patently false content in a nonpublic forum.

(2) Metro's rejection of the revised ad does not withstand scrutiny. Applying Matal v. Tam, 137 S. Ct. 1744 (2017), Metro's disparagement standard discriminates, on its face, on the basis of viewpoint.

(3) The disruption standard is facially valid but, on this record, Metro unreasonably applied the standard to Plaintiffs' ad. The panel disagreed with Metro that "it is reasonably foreseeable that Plaintiffs' ad will harm the transit system," because the "ads may perpetuate harmful stereotypes and may upset riders which, in turn, may cause a decrease in ridership." The panel based its conclusion primarily on the fact that "Metro approved a very similar ad—the State Department's own 'Faces of Global Terrorism' ad—which actually ran for a period of nearly three weeks. . . , but Metro's transit system did not experience any harm, disruption, or interference."

Happy 60th Birthday to the U.S. Interstate Highway System

It’s an auspicious day: The U.S. Interstate Highway System turns 60 years old today. 

As we reflect on the importance of President Eisenhower’s monumental public works program, it is apropos to consider why we are building a monumental transportation project for Hawaii, rail.

Here is a link to a report, “The Interstate Highway System turns 60: Challenges to Its Ability to Continue to Save Lives, Time and Money,” prepared by TRIP, a national transportation research group, http://www.tripnet.org/docs/Interstate_Highway_System_TRIP_Report_June_2016.pdf.  It’s a survey of the opportunities and challenges of the interstate system, and Hawaii ranks high on the challenges side of the balance sheet:

Source: http://www.fhwa.dot.gov/interstate/finalmap.cfm

• Hawaii is among the top states with the greatest share of their urban Interstate highways considered congested.
• Hawaii is among the top ten states with the busiest urban Interstates.
• Hawaii is number 1 among states with the greatest share of their Interstate highways with pavements in poor or mediocre condition.
• Hawaii is among the top ten states with greatest share of urban interstates that experience congestion during peak hours.
• Hawaii is among the top ten states with greatest daily travel per-lane-mile on urban interstates.

For the family sitting in traffic for hours every day commuting to work and school, these facts are meaningless.  All they know is that a significant portion for their lives are lost sitting in a car.

The final EIS prepared for the Honolulu rail transit project--its purpose, need, and goals--help to address all of these issues.  And, when you consider how rail will reshape development patterns by bringing far flung, sprawled communities within walking distance to work, school, home, and recreation through a mix of reliable, safe, and efficient transportation options, well, what else is there to say?  

The path to great things is always paved with obstacles, but isn’t that true of anything worth doing?  We need to stay the course.

Would You Use Public Transit if You Could Save between $20,000 and $80,000 on Your Home?

The cost to build a parking stall can range anywhere from $20,000 to $80,000 or more.

Progressive communities like the City of Seattle, San Francisco Bay Area, and Washington DC are looking beyond parking stalls and pursuing strategies toward promoting transportation, parking, and personal mobility efficiencies.  For example, the City of Seattle does not require parking for new buildings located in downtown or transit-friendly areas, and it continues to investigate policies that allow it to grow and evolve in ways that are functional, economic, and livable.

In a recent report prepared for the Seattle City Council, the City's planning department and state DOT analyzed the City’s vehicle and bicycle parking requirements for residential uses.  Their approach placed a preference on "lower costs to build housing rather than the storage of automobiles."

The report identified the following findings and best practices:

• Take steps to aid housing affordability by limiting the financial impacts of parking on housing
• Avoid requiring excess parking
• Manage on‐street parking to reduce demand
• Requirements for off‐street parking artificially support driving
• Requiring more off‐street parking does not directly lead to less on‐street parking demand
• Increasing access to and knowledge about transportation helps people choose from a variety of convenient and affordable options
• Housing and transportation costs are the greatest burdens on household budgets
• Equitable approaches that provide transportation options make a real difference for those who most need those choices
• Use a combination of strategies

Puget Sound Bike Share

Recommendations included:

• Tailor parking requirements for new development in areas with frequent transit service
• Require a “residential transportation options program” that includes requirements for multifamily building owners to provide transit passes and other mobility options for residents of new buildings (actual costs of this type of program will be a small fraction of the cost of building new parking)
• Adopt a map showing where parking is not required, providing more predictability for permit applicants, neighbors, and planning department staff
• Remove code barriers to shared parking options, and address garage design to facilitate shared use parking; Consider code revisions to allow bike share and car share in‐lieu of required parking
• Update bicycle parking code requirements to better address secure, comfortable, long‐term bicycle parking needs

The full report, "City of Seattle Parking Review: Report to Council PLUS Committee," April 13, 2015, is available at http://www.seattle.gov/dpd/cityplanning/2015parkingreport.pdf. 

Hawaii Supreme Court Awards Appellate Attorney's Fees under Private Attorney General Doctrine

On May 3, 2013, the Hawaii Supreme Court issued an opinion awarding appellate attorney's fees and costs against the City & County of Honolulu in the amount of $41,192.00 in attorney's fees and $343.00 in costs in Kaleikini v. Yoshioka.

Aliʻiōlani Hale, Hawaii Supreme Court Building

The underlying case relates to the Honolulu rail transit project, which is summarized at Hawaii Supreme Court Grants Honolulu Rail Project Partial Victory.  In short, Kaleikini brought suit against the City and the State of Hawaii, challenging the approval of the Honolulu High-Capacity Transit Corridor Project.  Kaleikini argued that the rail project should be enjoined until an archaeological inventory survey, which identifies and documents archaeological historic properties and burial sites in the project area, is completed for all four phases of the 20-mile, linear project under HRS chapters 6E (Historic Preservation), 343 (Environmental Impact Statements), and 205A (Coastal Zone Management).

Although phasing is permissible under federal historic preservation laws and the City completed historic and archaeological reports as part of a programmatic agreement; nonetheless, the Court found in Kaleikini's favor on her HRS chapter 6E claims as follows:

. . . SHPD [State Historic Preservation Division] failed to comply with HRS chapter 6E and its implementing rules when it concurred in the rail project prior to the completion of the required archaeological inventory survey for the entire project. The City similarly failed to comply with HRS chapter 6E and its implementing rules by granting a special management area permit for the rail project and by commencing construction prior to the completion of the historic preservation review process.

Kaleikini timely filed a request for attorney's fees and costs, and in particular, "attorney's fees pursuant to the private attorney general doctrine, in relation to work performed by . . . attorneys, at both the trial and appellate levels."

At the outset, the Court recognized that "[n]ormally, pursuant to the `American Rule,' each party is responsible for paying his or her own litigation expenses."  Notwithstanding, the Court chose to invoke the private attorney general doctrine, which "is an equitable rule that allows courts in their discretion to award attorneys' fees to plaintiffs who have `vindicated important public rights.'"  The three factors considered by the Court are:

1. the strength or societal importance of the public policy vindicated by the litigation, 
2. the necessity for private enforcement and the magnitude of the resultant burden on the plaintiff, and 
3. the number of people standing to benefit from the decision.

Addressing each factor in turn, the Court opined as follows:

1. "Kaleikini's case was responsible for clarifying the principle of procedural standing in historic preservation law in Hawaii, and clarifying the importance of addressing impacts on historic properties prior to approval and commencement of projects that are subject to the provisions of HRS chapter 6E."
2. "Kaleikini was solely responsible for challenging the City and State's erroneous application of HRS chapter 6E, and clarifying the City and State's responsibilities under the law."
3. The Court's underlying decision in this case "established 'generally applicable law' regarding standing to enforce historic preservation laws."

Having decided that the private attorney general doctrine applied in this case, the Court awarded Kaleikini reasonable appellate attorney's fees.  However, the Court determined that Kaleikini's request for attorney's fees against the State were barred by sovereign immunity; consequently, only the City was responsible for appellate attorney's fees related to the City's claims and defenses.

In conclusion, the Court held as follows:

Kaleikini's request for appellate attorney's fees and costs is granted against the City in the amount of $41,192.00 in attorney's fees and $343.00 in costs. Kaleikini's request for trial level fees and costs is denied, without prejudice to her seeking those fees and costs in the circuit court.

Don’t Be Afraid of the Alphabet Soup: TODs and PPPs

This entry was submitted to and published by the Star-Advertiser on January 28, 2013, under the title, "Smart Growth ideas will help guide transit-oriented development," at http://www.staradvertiser.com/editorialspremium/20130128_Smart_Growth_ideas_will_help_guide_transitoriented_development.html. 

In partnership with Smart Growth America, the State Office of Planning prepared a report entitled, Leveraging State Agency Involvement in Transit-Oriented Development to Strengthen Hawaii’s Economy, which is available online at http://goo.gl/tNEFQ.

We brought together various public (city and state), private, and community stakeholder representatives to discuss ways that state agencies can leverage transit-oriented development (TOD) to maximize benefits. Whatever you think about the Honolulu rail project, the fact of the matter is that there is a significant amount of state owned land within a 1/2 mile walking distance of the proposed transit stations. What does a future with rail and state properties around it look like? We asked state agencies to consider their roles as major property owner, largest state employer, and service provider. The recommendations in the report are based on those inter-agency discussions.

The report encourages using a Smart Growth approach, because of its many community and environmental benefits. These principles are supported, for example, by the U.S. Environmental Protection Agency (EPA), Department of Transportation, and the Department of Housing and Urban Development. In the report, we matched Smart Growth principles with TOD elements and New Day priorities to help guide better decision making. For example, one principle is to create a range of housing opportunities and choices. This aligns with the TOD element to “incorporate a range of housing and employment building types based on local character and the transit station area's role within the transit network market area,” which in turn supports the New Day agenda item “ensuring access to affordable housing and human services.” There are several of these connections we make on page 6 of the report, which reduces our dependence on fossil fuels, creates healthier communities, and preserves and protects open space and agricultural lands.

Nowhere in our report do we recommend planning, permitting, or environmental exemptions of any kind, as incorrectly suggested by commentators in the Star-Advertiser. TOD is simply a method for developing communities in a way that maximizes the use of public transit. In the context of TOD, there also seems to be a misunderstanding about what public private partnerships (PPP) are. PPPs are merely one method for delivering public projects that allows a public entity to share in the risks and rewards of public projects with the private sector. PPPs have been used in other states for housing projects, waterfront projects, airport improvements, and all variety of public projects. It would be a mistake to write-off PPPs. In the December 2012 publication of Governing, experts predict an increase in the use of PPPs by state and local governments as they become more strapped for cash.

The report is not the end of the discussion. And no matter what tool is used to deliver public projects, successful public projects depend on community and stakeholder collaboration in development decisions (another Smart Growth principle). The ten basic Smart Growth principles is a good starting place for delivering public projects and are discussed on EPA’s Web page at http://www.epa.gov/dced/about_sg.htm.

Jesse K. Souki, Esq.
Director, State Office of Planning

Federal District Court Allows City to Proceed with Construction of Honolulu Rail Transit Project

The Hawaii federal district court issued its final judgment in HonoluluTraffic.com v. Fed. Transit Admin., No. Civ. No. 11-00307 AWT (D. Haw. May 17, 2012), which allows the City and County of Honolulu to move ahead with all phases of the Honolulu rail transit project except for the fourth and final phase.

Although the court disallowed construction of Phase 4 until the City complies with the court's decision in HonoluluTraffic.com, the City "may prepare, Phase 4 engineering and design plans, conduct geotechnical training, and conduct other pre- construction activities, including any activities that are appropriate to complete the additional analysis required by the Summary Judgment Order." The requirements of the Summary Judgment Order are discussed in Federal Court Issues Significant Ruling in Honolulu Rail Project Case.

The final judgment allows the City to move ahead with construction of Phases 1 through 3 of the project, which is more half of the entire project. In addition, the construction schedule should not be significantly affected, because the City's plan has always been to construct the project sequentially from the west (the Ewa area) to the east (the Ala Moana Center area).

Federal Court Issues Significant Ruling in Honolulu Rail Project Case

Federal District Court Judge Wallace Teshima issued a significant order today stemming from a challenge to the City's environmental review of its proposed rail transit project.

In his Decision, Teshima concluded as follows: (1) the City failed to complete reasonable efforts to identify above-ground Traditional Cultural Properties (TCP) prior to issuance of the Federal Transit Administrations' record of decision, pursuant to a federal transportation law related to historic resources; (2) the City failed to adequately consider the Beretania Street Tunnel alternative prior to eliminating it as imprudent from EIS analysis; and (3) the City failed to adequately consider whether the project will "constructively use" Mother Waldron Park, pursuant to a federal transportation law that requires analysis of indirect impacts to park resources.

However, Teshima sided with the City on several issues, including that managed lanes, bus rapid transit, and at grade alternatives were properly excluded from EIS analysis.

The next step is for the court to consider whether to issue a permanent injunction at this time and its terms.  The parties were directed by Teshima to brief this issue.

This case focused on federal environmental laws.  In a separate state court decision, the project's EIS was upheld.  A copy of the Teshima's decision can be found at http://t.co/1ZJKnDZR.

TOD Q&A from ULI Provides Interesting Insight

Here's a great Q&A by the Urban Land Institute (ULI) entitled, Transit-oriented Development Outlook.

In particular, the following comments are elucidating:

• There is significant pent-up demand for walkable urban, ideally rail ­transit–oriented development.
• A disproportionate amount of future development will be transit oriented—fueled by investor interest in TOD, which is at an all-time high.
• The mixed-use aspect often makes financing more difficult.  
• [L]enders see proximity to transit as a benefit. But just being adjacent to transit does not necessarily make a project a transit-oriented development.
• [T]rolley system is an excellent alternative [to light rail.]
• Bus rapid transit [BRT] is a real unknown.
• For both commuter rail and bus rapid transit, we don’t yet have documented evidence that they create economic development around transit stations. We do have proof that streetcars, heavy rail, and light rail do. 
• The fear with BRT is a lack of permanency. If I’m going to develop around a transit stop, I want to be assured that that the transit stop won’t leave.
• Public/private partnerships are often the way to move projects forward, but the public side has very limited capital availability and thus is pushing more onto the private side.
• [V]alue capture, based on the idea that if you build a station or transit hub on one parcel, the adjacent parcels will benefit. Tax increment financing, Mello-Roos financing, and other funding mechanisms can accomplish that[.]
• [H]igh-density walkable urban development is still illegal in most jurisdictions.
• NIMBY opponents are becoming proponents; they have become YIMBYS—yes in my backyard. This is because in the neighborhoods around walkable urban places, particularly the single-family neighborhoods, the quality of life goes up, which translates into higher price premiums for their houses.
• We need to put in a new kind of infrastructure, and the federal government is not leading the way.
• Light-rail systems are expensive to build. Seattle is spending $15 billion on phase two of its light-rail system, and 90 percent of that comes from local taxes. 
• [A]ssembling the parcels you need for development is a big challenge.
• [C]hanging the way people live from an auto-centric culture to a culture where people will walk and take high-capacity transit.

For more on rail transit, visit our archives.

Evolving the Way We Think about Transportation

Article: Tom Downs, Demographics as Destiny, citiwire.net, Sept. 3, 2011, available at http://citiwire.net/post/2912.

Summary: Mr. Downs discusses the impact of changing demographics (Baby Boomers and Gen. X and Y) on suburbia. He suggests that "walking, biking and transit are about to become the next wave of transportation to shape our urban areas," which requires us to evolve our thinking about transportation:

It ultimately comes down to how we think about the use of the public right of way. Most successful regions start with mapping the way people are walking, biking and using transit in the same way we used to count cars: Look at the flow and the demand. Plan sidewalks with walking in mind. Repair the sidewalks that are falling apart. (It is actually pretty cheap to do.) And how about transit that allows riders to track buses and trains in real time on their cell phones? How about bike accessible transit? How about signal coordination for buses? How about setting a goal for the percent of commuters who bike to work? Most planners say that their weather is not conducive to biking, but the second highest percentage of commuters who bike to work is in Minneapolis (winter) 3.4 percent. Portland, Oregon (rain) is, of course, first with 4.5 percent.

Sustainable Transportation

A recent comparative study by The Brookings Institution, Making Transportation Sustainable: Insights from Germany, explores the key differences and determinants of travel behavior in Germany and the United States.  For purposes of the study, sustainability is defined as follows:

. . . encouraging shorter trips by modes of transportation that require less energy and generate less harmful environmental impacts. Moreover, a more sustainable transportation system should foster commerce, reduce energy consumption and carbon emissions, increase safety, provide equal access to destinations for all groups of society, and enhance the quality of life.

The study concludes that

The German experience offers five lessons to the United States for improving transportation sustainability through changes in travel behavior:

-Get the Price Right in order to encourage the use of less polluting cars, driving at non-peak hours and more use of public transportation

-Integrate Transit, Cycling, and Walking as Viable Alternatives to the Car, as a necessary measure to make any sort of car-restrictive measures publicly and politically feasible

-Fully Coordinate and Integrate Planning for Land Use and Transportation to discourage car-dependent sprawl and promote transit-oriented development

-Public Information and Education to Make Changes Feasible are essential in conveying the benefits of more sustainable policies and enforcing their results over the long term

-Implement Policies in Stages with a Long Term Perspective because it takes considerable time to gather the necessary public and political support and to develop appropriate measures. 

This report was prepared as part of Brookings' Metropolitan Infrastructure Initiative.

Visit the Transportation and Planning archives for more on these topics.

Superferry Sightings

Today's Passenger Transit Express newsletter by the American Public Transportation Association (APTA) reports that the Alakai recently joined its sister ferry the Huakai to carry relief supplies to Haiti.

The Alakai and Huakai catamarans formerly provided cargo and passenger ferry service between Oahu and Maui. The ferries are currently berthed in Norfolk, Virginia after Hawaii Superferry declared bankruptcy and went out of business. The primary contributing factor to Hawaii Superferry's downfall was its failure to comply with Hawaii's environmental laws.

For more on the Hawaii Superferry, see the Hawaii Superferry archive.

How Walkable is Your Community?

Here is a neat web application, Walk Score by Front Seat, a self-described "civic software company and incubator" based in Seattle, Washington.

Point your browser to www.walkscore.com, enter your address, and the site will figure out how walkable your community is from your address. My address got a 98 out of a 100, not bad. According to the site,

Your Walk Score is a number between 0 and 100. Here are general guidelines for interpreting your score:

• 90–100 = Walkers' Paradise: Most errands can be accomplished on foot and many people get by without owning a car.
• 70–89 = Very Walkable: It's possible to get by without owning a car.
• 50–69 = Somewhat Walkable: Some stores and amenities are within walking distance, but many everyday trips still require a bike, public transportation, or car.
• 25–49 = Car-Dependent: Only a few destinations are within easy walking range. For most errands, driving or public transportation is a must.
• 0–24 = Car-Dependent (Driving Only): Virtually no neighborhood destinations within walking range. You can walk from your house to your car!

See How it Works.

Your Walk Score is figured out using an algorithm that measures walkability by the distance amenities are located to a particular address. The closer the amenity, the higher your score--anything beyond a mile receives no points.

Walkability is one of the key considerations of transit oriented development and new urbansim. Read more at Transportation and Planning.

Oahu Bike Plan Available for Public Review

The Department of Transportation Services, City and County of Honolulu, has completed a Public Review Draft of the Oahu Bike Plan, July 2009.

The Plan provides policy and program recommendations and identifies an integrated network of on-road bike lanes and routes and off-road paths that link people to favorite and frequently visited destinations. The Plan is updated every five years.

Oahu's twenty-year vision for bicycling is: "Oahu is a bicycle-friendly community where bicycling is safe, viable, and popular travel choice for residents and visitors of all ages."

Download the full report at www.oahubikeplan.org.

Public Transportation Saves 37 Million Metric Tons of Carbon Annually and 4.2 Billion Gallons of Gasoline

The American Public Transportation Association (APTA) recently sponsored the CQ Forum on Climate Change Policy and Transportation

According to APTA President William Millar, public transportation saves 37 million metric tons of carbon annually, as well as 4.2 billion gallons of gasoline. Sen. Benjamin L. Cardin (D-Md.), spoke about how climate change is a "direct threat" on national security with a measurable rise in sea level and harsh weather conditions. He warned that energy dependence affects the economy, security, and the environment.

Sen. Thomas Carper (D-Del.), spoke about the Clean Low-Emissions Affordable New Transportation Equity Act (CLEAN TEA). Introduced as H.R. 1329 on March 5, 2009, the purpose of CLEAN TEA, generally, is to amend title 49, United States Code, to support efforts by States and eligible local and regional entities to develop and implement plans to reduce greenhouse gas emissions from the transportation sector. The CRS summary of the bill provides as follows:

Clean, Low-Emission, Affordable, New Transportation Efficiency Act - Establishes the Low Greenhouse Gas Transportation Fund.

Requires the Administrator of the Environmental Protection Agency (EPA), for each of calendar 2012-2050, to auction 10% of emission allowances established under any EPA program providing for the reduction of greenhouse gas emissions and the auctioning of emission allowances.

Requires deposit of auction proceeds into the Fund to implement state and eligible regional or local entity greenhouse gas emission reduction plans, and provide funding to transit projects that help reduce such emissions.

Requires states and eligible regional or local entities representing populations of more than 200,000 people to: (1) establish goals for reducing greenhouse gas emissions from the transportation sector for the next 10 years; and (2) develop transportation greenhouse gas emission reduction plans, including supporting lists of prioritized transit projects, that are integrated into state and eligible regional or local entity long-range transportation and transportation improvement plans.

Directs the Secretary of Transportation and the EPA Administrator to contract with the Transportation Research Board of the National Academy of Sciences to study and report recommendations for improving research tools and federal data sources necessary to assess the effect of state and local transportation, land use, and environmental plans on motor vehicle use rates and transportation sector greenhouse gas emissions.

The panel discussion included:

• Kevin Desmond, King County Metro Transit Division/Department of Transportation, Seattle
• Deron Lovaas, Natural Resources Defense Council
• Caitlin Rayman, Maryland Department of Transportation
• Daniel J. Weiss, Center for American Progress

Watch the full presentation at http://www.fednet.net/asx/cpf/CQ/cq072209.asx.

HUD, DOT and EPA Partner Up for Sustainable Communities

Federal agencies DOT, HUD and EPA are partnering up to coordinate policy for sustainable communities. The agencies have identified six livability principles as the foundation for their cooperation:

1. Provide more transportation choices
Develop safe, reliable and economical transportation choices to decrease household transportation costs, reduce our nation’s dependence on foreign oil, improve air quality, reduce greenhouse gas emissions and promote public health.

2. Promote equitable, affordable housing.
Expand location- and energy-efficient housing choices for people of all ages, incomes, races and ethnicities to increase mobility and lower the combined cost of housing and transportation.

3. Enhance economic competitiveness.
Improve economic competitiveness through reliable and timely access to employment centers, educational opportunities, services and other basic needs by workers as well as expanded business access to markets.

4. Support existing communities.
Target federal funding toward existing communities – through such strategies as transit-oriented, mixed-use development and land recycling – to increase community revitalization, improve the efficiency of public works investments, and safeguard rural landscapes.

5. Coordinate policies and leverage investment.
Align federal policies and funding to remove barriers to collaboration, leverage funding and increase the accountability and effectiveness of all levels of government to plan for future growth, including making smart energy choices such as locally generated renewable energy.

6. Value communities and neighborhoods.
Enhance the unique characteristics of all communities by investing in healthy, safe and walkable neighborhoods – rural, urban or suburban.

Read more at http://www.dot.gov/affairs/2009/dot8009.htm.

State Unveils $4.2 billion, Six-Year Highway Modernization Plan

According to a January 22, 2009 press release, Governor Linda Lingle, together with Senate Transportation Chair Kalani English, House Transportation Chair Joe Souki, and State Transportation Director Brennon Morioka unveiled a $4.2 billion dollar, six-year Highway Modernization Plan. 

The statewide plan would implement critical highway projects and programs aimed at reducing traffic congestion, improving highway safety, maintaining roads, and saving motorists time and money.

Under the proposed legislation (which has not been submitted to the legislature as of this posting), funding for the plan would be raised as follows:

• The state fuel tax which is currently $0.17 per gallon would be raised to $0.27 per gallon, generating an estimated increase in annual revenues of $51 million. 
• Vehicle weight taxes, currently set at 3/4 of a cent per pound for vehicles up to 4,000 pounds, would be raised to 2 and 3/4 of a cent per pound, generating an additional $68 million in annual revenues. 
• Motor vehicle registration fees would also be increased from $25 per year to $45 per year, adding an additional $23.3 million in annual revenues. 
• The rental vehicle surcharge tax would be increased from $3 per day or portion of day to $5 per day or portion of day, creating an additional $32 million annually. 

Financial impacts to the average taxpayer would be a total of $170 per year.

The Department of Transportation's Web site has additional information, including a breakdown of proposed projects, at http://hawaii.gov/dot/news/state-unveils-comprehensive-six-year-highways.

Draft EIS for the Hawaii Superferry Available for Public Comments

Act 2 (2007), exempted the Hawaii Superferry from Hawaii’s EIS requirements under HRS chapter 343 so that it could operate without conducting an environmental review.

However, Act 2 required that the State Department of Transportation (“DOT”) prepare an EIS type document for the Office of Environmental Quality Control’s ("OEQC") review and acceptance. The document, Statewide Large-Capacity Ferry Environmental Impact Statement, Draft Environmental Impact Statement, is available for public review. According to the DOT’s Web site:

Written comments to the OEQC, with a copy of the comments to the DOT, should be received or postmarked within 45 days of today’s release of the report. Because the close of the 45-day comment period (February 22, 2009) falls on a Sunday, comments postmarked one day thereafter, on February 23, 2009, will be accepted.

After the 45-day comment period, DOT will prepare a Final EIS that incorporates the public’s comments, DOT responses to those comments, and any amendments to the document. The OEQC must accept or not accept the Final EIS based on the following criteria under Act 2, Section 12:

(c) Acceptability of a statement shall be evaluated on the basis of whether the statement, in its completed form, represents an informational instrument which fulfills the definition of an environmental impact statement and adequately discloses and describes all identifiable environmental impacts and satisfactorily responds to review comments.

(d) A statement shall be deemed to be an acceptable document by the office only if all of the following criteria are satisfied:

(1) The procedures for consultation process, review, and the preparation and submission of the statement, have all been completed satisfactorily as specified in this part;

(2) The content requirements described in this part have been satisfied; and

(3) Comments submitted during the review process have received responses satisfactory to the office, and have been incorporated in the statement.

What happens after OEQC’s acceptance is not clear. Under HRS chapter 343-7(c), “[a]ny judicial proceeding, the subject of which is the acceptance of an environmental impact statement required under section 343-5, shall be initiated within sixty days after the public has been informed pursuant to section 343-3 of the acceptance of such statement.” However, Act 2 provides that the “the environmental review process for state actions in connection with a large capacity ferry vessel company shall be governed by this Act, and not by chapter 343, Hawaii Revised Statutes.” Since Act 2 does not have a judicial challenge mechanism or statute of limitations, challengers may need to satisfy higher standing requirements under common law but with no restriction on when they can bring an action. In the alternative, the court may subject claims to HRS chapter 343 notwithstanding Act 2. Another round of courtroom arguments may be in the near future.

For more on the Hawaii Superferry case, see this blawg's Hawaii Superferry archive.

Transit Oriented Development and Affordable Housing

In a recent entry at HawaiiBusiness.com, two sides fired off on whether Honolulu's transit project will impact the availability of housing for working families.

Transit per se will not affect the availability or unavailability of affordable housing. In order to provide more affordable housing, transit must be paired with transit oriented development (“TOD”). According to the Transit Cooperative Research Program, sponsored by the Federal Transportation Association, TOD has three primary traits (1) Mixed-use development; (2) Development that is close to and well-served by transit; and (3) Development that is conducive to transit riding.

According to a 2002 study, Factors for Success in California’s Transit-Oriented Development, commissioned by the California Department of Transportation,

TOD can contribute to more affordable housing. TOD can add to the supply of affordable housing [1] by providing lower-cost and accessible housing, and [2] by reducing household transportation expenditures. Housing costs for land and structures can be significantly reduced through more compact growth patterns.

First, providing lower-cost and accessible housing is achieved through various developer incentives that promote development near transit stations in exchange for affordable units, including:

• Reducing the minimum parking requirements or setting maximum parking requirements around major transit stops,
• Density bonuses, and
• Property tax abatements to developers of higher-density, mixed-use, residential developments.

In addition to developer incentives, potential homeowners may be eligible for a Location Efficient Mortgage (“LEM”). An LEM, sponsored by Fannie Mae, is a mortgage that helps people become homeowners in location efficient communities such as TOD projects.

Second, reducing household transportation expenditures can also promote housing affordability. The average annual expenditure per capita in Honolulu for transportation between 2004 and 2005 was about $10,000. TOD can help to reduce the cost of transportation by reducing a homeowner's dependence on vehicles. According to the Center for Neighborhood Technology,

A growing body of research has shown a strong relationship between increased density, transit access and pedestrian friendliness on the one hand, and reduced vehicle miles traveled and automobile ownership on the other.

The bottom line: Transit paired with TOD creates an opportunity for increased housing affordability.

For more on affordable housing policies in Hawaii see this blawg’s Affordable Housing archive.

Superferry Case II, Oral Arguments Posted

Oral arguments in the Superferry Case II are posted at the Oral Arguments Recordings Archive of the Hawaii Supreme Court's Web site:

NO. 29035 Thursday, December 18, 2008 - 9:00 a.m.

THE SIERRA CLUB, a California non-profit corporation registered to do business in the State of Hawai`i; MAUI TOMORROW, INC., a Hawai`i non-profit corporation; and the KAHULUI HARBOR COALITION, an unincorporated association, Petitioners/Plaintiffs-Appellants/Cross-Appellees/Appellees/Cross-Appellants, vs. THE DEPARTMENT OF TRANSPORTATION OF THE STATE OF HAWAI`I; BRENNON MORIOKA, in his capacity as Director of the DEPARTMENT OF TRANSPORTATION OF THE STATE OF HAWAI`I; MICHAEL FORMBY, in his capacity as Director of Harbors of the DEPARTMENT OF TRANSPORTATION OF THE STATE OF HAWAI`I,

Source: Oral Arguments Recordings Archive, Hawaii State Judiciary.

State Auditor Finds $38.5 Million in Hawaii Superferry Harbor Improvements Not Needed; OEQC Must Clarify EIS Rules

On the eve of oral arguments regarding the constitutionality of Act 2 (2007) in the Superferry Case, the Office of the Auditor released Report No. 08-11, Performance Audit on the State Administration's Actions Exempting Certain Harbor Improvements to Facilitate Large Capacity Ferry Vessels from the Requirements of the Hawaii Environmental Impact Statements Law:  Phase II.

According to the Audit,

. . . Last summer, Hawaii Superferry officials announced that they will be outfitting their second ship with an onboard ramp, a feature that eliminates the need for the $10 million barge-and-ramp system at Kawaihae Harbor and the $2.5 million ramp at Nawiliwili Harbor, both built to accommodate Hawaii Superferry and no other users. If company officials choose to retrofit their first ship, the Alakai, with a loading ramp, the State’s entire $38.5 million barge-and-ramp system would quickly become unnecessary. Because the barges were designed specifically for Hawaii Superferry use, they cannot be repurposed in their present configuration by other harbor users. In addition, since they were built in China and are therefore prohibited from transporting cargo within U.S. waters, the barges may have little use for potential buyers. This situation would have been avoided if state officials had required Hawaiÿi Superferry to carry an onboard ramp in the first place.

We also found that the legislation on behalf of Hawaii Superferry compromised the State’s environmental laws and set a worrisome precedent for future government accommodation that puts the interests of a single business before the State’s environmental, fiduciary, and public safety responsibilities.

Regrading Hawaii's EIS law, the Auditor recommends that the Office of Environmental Quality Control ("OEQC") should (1) establish guidelines, including a checklist for agencies determining exemptions from Hawaii EIS law; (2) establish a process to provide guidance to agencies in determining whether an action is projected to have a significant environmental impact which would make an exemption inapplicable; (3) amend the EIS rules to ensure the OEQC provides training to state and county agencies; (4) clarify the agency consultation process regarding proposed exempted actions; and (5) establish clear definitions of cumulative and secondary impacts.

The OEQC already provides some guidance on exemptions in its Guidelines on Exemptions from Preparing Environmental Review Documents.  The terms of art, "significant environmental impact" and "cumulative and secondary impacts",  identified by the Auditor are defined by rules adopted by the Environmental Council under HAR § 11-200-2.   Cumulative impact is defined as follows:

. . . the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.

The terms secondary impact,  secondary effect, indirect impact, or indirect effect are defined as follows:

. . . effects which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems.

Finally, significant effect or significant impact is defined as follows:

. . . the sum of effects on the quality of the environment, including actions that irrevocably commit a natural resource, curtail the range of beneficial uses of the environment, are contrary to the state's environmental policies or long-term environmental goals and guidelines as established by law, or adversely affect the economic or social welfare, or are otherwise set forth in section 11-200-12 [list of enumerate significance criteria] of this chapter.

Because of the elasticity of these definitions,  these terms of art have been the subject of controversy and elucidated upon by the courts from time to time.  The Superferry Opinion issued by the supreme court in 2007, analyzes each of these terms of art in the context of whether it was proper for the DOT to exempt actions related to the Superferry from Hawaii's EIS law.  The Opinion also sets forth, in clear detail, the exemption process.  

Post-Superferry, the OEQC will need to harmonize over a decade's worth of judicial interpretation into cogent, easy to follow procedural rules and guidelines, no small task.