Anti-LRT activists in Clackamas County seek Milwaukie MAX referendum


The Oregonian‘s Molly Harbarger reports that a group of activists in Clackamas County, opposed to the Milwaukie MAX project, is seeking to place a referendum on the ballot to prevent the county from contributing any money to “finance, design, construct or operate” the project. The petition, approved by the Board of Commissioners, will be reviewed by the county district attorney within five days, and if it passes legal muster, petitioners will then be able to start collecting signatures. Nearly 10,000 signatures is needed to put the matter on the ballot.

Assuming that a petition drive is successful–given how recent votes in Clackamas County have gone, I suspect it would be, passage of such a measure would bring about many questions:

Could it pass?

Given the past two years of ballot returns in Clackamas County, I’d say the answer to this is a definite “yes”. The TriMet funding measure on the November 2011 ballot was defeated by a 2/3-1/3 majority. The rescinding of the $5 motor vehicle fee for the Sellwood Bridge, and the recent urban-renewal initiative, also passed easily–it’s safe to say that there is a backlash against spending money on public works projects, especially those perceived to be beneficial to transit. In addition, were the petition to be successful, it would appear on the May ballot, not the November one–given that most of the primary action will be on the GOP side (I don’t expect a primary challenge to Rep. Schrader), a more conservative electorate is likely to show up at the polls.

A more interesting question concerns the make-up of the Board of Commissioners itself; quite a few commissioners, including the chair, are up for re-election in November. It is possible that the current pro-smart-growth majority on the county commission could be ousted. On the other hand, this will happen in the November 2012 election, which will undoubtedly attract a more liberal electorate; despite the “red wave” in November 2010, the pro-transit majority was not displaced.

Is it legal?

There’s a chance that the district attorney might declare the petition as written to be out-of-bounds, or require revision–an unusual maneuver which would provoke its own fight. I’m going to assume, however, that this does not happen, and that any substantial inquiry on the legality of such a proposal would be deferred until after it passes.

The position of the Board of Commissioners of Clackamas County is that in 2010, the County executed a contract with TriMet to provide funds to build MLR, and that this is an obligation legally binding on the county which cannot be undone by referendum. There is ample case law to support this opinion: the so-called Contract Clause of the US Constitution prevents states and their political subdivisions from passing any law “impairing the Obligation of Contracts”. The purpose of the Contract Clause was to prevent the states from passing bills granting “private relief” to parties in a contract–in particular, laws forgiving debtors. However, the Contract Clause (or the Contracts Clause–both forms are widely used) has been interpreted more generally than that; one major consequence is that governments cannot pass laws (either via direct legislative act or via popular referendum) which undo its own contractual obligations. In Fletcher v. Peck, the Supreme Court held that even blatantly-one-sided contracts entered into in bad faith by corrupt government officials (in this case, selling public lands to speculators for pennies on the dollar) may not be rescinded by subsequent reform-minded legislatures.

Based on this, a good argument can be made that an attempt by the citizens of Clackamas County to cancel the MLR contract (or to abrogate the County’s obligations) is not valid. On the other hand, the County has not enjoyed the bulk of the benefit(s) of the contract–construction of the MLR line between the Park Avenue station and the Multnomah county line–so if Clackamas County voters were to block the County’s performance of the contract and TriMet were to sue, it’s not clear that TriMet would be entitled automatically to payment of the full amount, given that they haven’t performed the bulk of their obligations under the contract.

What could happen to MLR?

If the initiative passed and were upheld, meaning Clackamas County’s share of funding were rescinded, what would happen? As Harbarger notes, it’s unlikely that this would result in the cancellation of the project–Clackamas County’s contribution is less than 2% of the overall project budget. But a couple of obvious possibilities:

  • Construction of the MOUS (minimum operationally usable segment) to Milwaukie As part of the NEPA process, planners designated a MOUS for the project–a subset of the full project which could be done as a scaled-back version, if financing for the full project were reduced. The MOUS, in this case, eliminates only one stop–the Park Avenue Park-and-ride–and that’s in Clackamas County; instead, the line would terminate in downtown Milwaukie. Given that an expensive viaduct is needed to cross OR99E to reach the Park Avenue station, elimination of Park Avenue would probably more than make up the gap. A downside is that it would eliminate a major park-and-ride on the line, making MLR less attractive to Clackamas County commuters. (The question of park-and-rides is a controversial one, but given that much of Clackamas County is lower-density development that can’t be easily served by transit, a P&R is probably a necessary compromise)
  • Construction of the line only to Tacoma Street. This is probably not a viable option, as this alignment is not considered in the EIS, and thus would require significant amounts of additional review to get federal funding. It would have the “advantage” that the project would no longer cross into Clackamas County, but it would also severely compromise the viability of the project.
  • Reduced funding for county highway projects. Another possible outcome would simply be that Metro or other regional actors makes up the funding shortfall, transferring the money from some other Clackamas County project down the line. The Regional Transportation Plan project list contains many projects in the County which are eligible for regional funding. Were Metro to do this, it might further inflame already tense relations, particularly if a Metro-hostile board were to be elected. Similar maneuvers might also occur at the state level, with the Oregon Legislature appropriating funds to make up the difference, and deleting a corresponding amount of funding from county highway projects.

32 responses to “Anti-LRT activists in Clackamas County seek Milwaukie MAX referendum”

  1. Opposition like this really annoys me. The specific project is not a problem, but a symptom.

    The real problem is the Federal government getting into funding local transportation projects, and funding highways long before transit and at higher rates. If it wasn’t for that, and all the other things that distort the transportation and development marketplaces, we could possibly have a rational discussion of which type of transit is the most cost-effective. It might turn out to be light rail, it might turn out to be something else.

    As for the project, consider ending the line at Lake Road and having a station with park & ride north of Harrison Street. The P&R could connect to Hwy 224 to eliminate traffic issues, and there could be an agreement to fund a security officer.

    The portion south of Lake Road is expensive, problematic, not on the way to Lake Oswego (if it’s decided to send the line that way) and redevelopment is uncertain.

    The only issue is that every $1 reduction in local funding, another $1 will probably be eliminated, too.

  2. Opposition like this really annoys me. The specific project is not a problem, but a symptom.

    The real problem is the Federal government getting into funding local transportation projects, and funding highways long before transit and at higher rates. If it wasn’t for that, and all the other things that distort the transportation and development marketplaces, we could possibly have a rational discussion of which type of transit is the most cost-effective. It might turn out to be light rail, it might turn out to be something else.

    As for the project, consider ending the line at Lake Road and having a station with park & ride north of Harrison Street. The P&R could connect to Hwy 224 to eliminate traffic issues, and there could be an agreement to fund a security officer.

    The portion south of Lake Road is expensive, problematic, not on the way to Lake Oswego (if it’s decided to send the line that way) and redevelopment is uncertain.

    The only issue is that every $1 reduction in local funding, another $1 will probably be eliminated, too.

  3. I’m not so sure this proposed referendum ISN’T illegal. You can’t just back out of a signed contract because a few whack jobs have a stick up their ass about “Crime Trains” coming to their neighborhood. If you don’t like what the county commissioners did, vote them out of office next year. But trying to stop a huge project that’s already under construction is too little too late.

    The reason large public works projects like this aren’t put up for popular vote is because nobody WANTS to pay for infrastructure, so of course they would vote it down. If ODOT had to submit all of its projects for a vote, our highways would be impassable by now. Do you think Portlanders WANTED to pay billions for the two Big Pipe projects? Of course not.

  4. Well, it’s not strictly true that nobody wants to pay for infrastructure. Nobody wants to pay for SOMEONE ELSE’s infrastructure, and its always nice to have someone on the outside pick up the bill. But Portlanders have voted “yes” on light rail every single time it’s been put before them (Westside line, and three times on the N/S line). A lot of people, probably a majority, are okay with paying for projects they themselves will benefit from.

    I can see Clackamas County as a whole voting no on the Milwaukie MAX because, even putting aside the nonsensical blithering about the “crime train”, there’s nothing in it for the VAST majority of Clackamas County residents. They’d be paying a share of a preposterously expensive transit project that serves one small corner of the county, and is useful only for a relative handful of North Clackamas County residents who are trying to get into Portland.

    Portlanders were willing to tax themselves for light rail in four consecutive elections because, with the exception of the Westside line, every light rail project Tri-Met has ever built was predominantly or entirely within Portland city limits and served a large number of Portlanders. That includes the current one.

    But I agree with Aaron’s major point: even if this initiative passes, it will be ineffective. The contract has been signed. Ground is broken. Contractors and subcontractors have submitted bids. The remedy for disgruntled residents is to vote out the Commissioners who approved it, if a large enough voters are really THAT angry about this one particular issue.

  5. Uh, I distinctly remember the yellow line being voted down!

    Of course they built it anyway.

    There were no votes on the green line, or the streetcars, and of course no votes on the Milwaukie line.

  6. It was Clark County that derailed the South-North project. Portlanders, and even Clackamas County, were solidly behind it.

  7. Nope, the Yellow Line was never voted down.

    We in Portland said “yes” twice to what eventually became the Yellow Line. 1994, the measure passed in the entire Tri-Met district 60-40, with strong support from Portland. Tri-Met area voters NEVER said “no” to the Yellow Line.

    In 1996, opponents of the project forced a state-wide vote on state funding of the project. Unsurprisingly, it failed (ask someone in Grants Pass whether state money should pay for a transit project in Portland, and you’ll get the same response as asking someone in Portland whether state money should pay for a highway project in Grants Pass.) However, the funding was approved in the Tri-Met service area. That wasn’t a vote against the Yellow Line, it was a vote against using state money on the project. The Yellow Line was eventually built without state money.

    In 1998, Tri-Met sent back a shorter project, basically a longer version of the Milwaukie MAX line with the North Portland segment eliminated. The measure failed by a narrow margin due in opposition in Washington and Clackamas County — but it PASSED in Portland. The Yellow Line wasn’t up for a vote at that point, so it couldn’t have been defeated.

    Building the Yellow Line was the will of Portland (and in fact all Tri-Met area) voters, and as approved twice in separate elections.

  8. Clark county voters did not have a say in the original yellow line vote.

    That was a Portland only vote on a Portland only ballot and it failed.

  9. I’m sorry, but what exactly are you talking about? In which election did Portland voters — or Tri-Met service area voters, for that matter — reject the Yellow Line? Which year? What were the results?

  10. I remember it clearly, there was a vote about it, I forgot when it was, 1995 or something, I don’t know.

    Bob R, Scott, Chris, you know what I am talking about I’m sure.

    I’m not hallucinating, it was the last time they put that sort of thing before the voters too!

  11. My memory doesn’t differ from Doug’s. Ballot Measure 32 in 1996 failed, but that was a statewide referendum on a statewide funding package that included far more than light rail. I don’t recall Portland voters ever specifically voting against light rail; voters in Portland proper have long supported transit at the polls. I don’t recall specifically the Clark County vote or the 1998 N/S vote, but that may be a fault of my memory. Later I may go digging…

  12. Al, there was no Yellow line (or Red or Blue line) at that point. Just the Gresham (Banfield) line. Colors weren’t being used until the Airport line was finished in 2001. You’re confusing the earlier South-North project with what became the Yellow line in 2004. And Portland was always in favor of every MAX line that we ever voted on.

  13. No there was definitely a vote for something that had to do with rail going up interstate avenue, I’m not sure if it was city/county/state or what.

    And I remember the vote was no.

    I also remember the technocrats just found another way to put it in since they couldn’t get the voters to fund/bond it.

    There was never another vote on light rail again.

    Of course this city is the only city where the voters were dumb enough to allow the city to impose its very own INCOME TAX on the citizens.

    I still can’t believe that passed, every year when I made out that check I wanted to scream.

  14. Al,

    We’ve never voted on a rail line per se, we’ve voted on taxes to pay for rail expansion. And while the North-South vote failed, the commenters are correct that the measure had a majority of support within the City of Portland. And yes, our elected officials found ways to fund light rail development without those increased taxes.

    And the temporary income tax was a Multnomah County tax, not a City of Portland tax.

  15. Al M, just because you “remember” something doesn’t mean it happened. I “remember” the great Martian Invasion of 1998, but I doubt anyone’s going to take my word for it. Unless you can cite the year, the ballot measure, the exact results and (hopefully) a link to some official statistics or news stories from reputable sources you shouldn’t be stating something is true because you “remember it happening”.

  16. Al, as far as I can remember the light rail votes were:

    1990: Westside MAX. Passed about 80-20 in the Tri-Met service area.

    1994: S/N MAX (including the segment through North Portland). Passed about 60-40 in the Tri-Met service area.

    1995 or so: Clark County sales tax measure to extend light rail north all the way to Salmon Creek Transit Center. Failed in Clark County, I think by a large margin. Obviously, nobody in Portland voted on it.

    1996: State-wide referendum on a $750 million transportation spending package, including $375 million for S/N light rail. Failed statewide, but passed in the Tri-Met service area.

    1998: Tri-Met measure for $375 million to create a light rail line from downtown to Clackamas Town Center via Milwaukie. Failed by a small margin (something like 48-52, but I not sure), but passed in the City of Portland.

    Bottom line: EVERY TIME voters in the City of Portland have been asked to approve tax money for light rail, they’ve said yes. It’s a real stretch (at very least) to claim the Yellow Line was built in defiance the will of the voters.

  17. So Portlanders are intelligent enough to understand that taxes are not evil, that they are a necessary part of a modern society where millions of people live within the same metropolitan area. Without taxes, you don’t have services or infrastructure. You just have anarchy (or a Libertarian paradise where everybody fends for themselves).

    Thankfully most Portlanders realize they are getting something valuable in return when they tax themselves.

  18. It’s kind of interesting to note the sentiments about big public work projects from the early 1950s to today’s current time. Big government projects were readily embraced during the 50s, not so much now.

    You can’t get anything built these days. There’s too many problems, too many people, too many special interests, and most all, too many opinions.

    I think we are in the day and age of mass information (and mis-information) where people can come together quickly and raise up an issue and get noticed.

    It’s interesting our region is so bifurcated and sentiment of government so negative, we can’t even get a highway or light rail project built.

    Maybe this is all good, gridlock and all of that; we’ve seen the destruction the interstate system had on neighborhoods. That would not happen today at that scale (I don’t think, at least).

    Just something I’ve noted.

  19. But we ARE getting a light rail project built, and have built three others over the past decade, along with one streetcar line and another to open this coming year.

    And quite a few highway projects as well. No new highways where none were before, but many freeways in the Oregon side of the metro area have been widened (I-5 to the north, US26, I-205, I-5 south of Tigard). A few new metro highways are on the drawing board, including the Sunrise Corridor (and JTA projects), the I-5/99W connector, and to our southwest, the Pinot-Casino Freeway. North of the Columbia, I-5 has been widened up to Salmon Creek, SR14 is now a freeway from Vancouver to Camas, and SR500 is being converted into a full freeway all the way out to Brush Prairie.

    And then there’s the CRC.

    One good thing about light rail, or other forms of urban rapid transit–it doesn’t destroy neighborhoods like freeways do. Certain forms of it can–a big ugly concrete el with four tracks can carve a nasty path through a neighborhood–but those forms are not being built in Portland.

  20. @ES

    We are getting things built but not at the scale in the 1950s/60s with its big public projects like the space program and interstate system.

    My comments were not in favor nor against past how things are done today or in the past in regards to public policy and public works, just a comment of how it is.

    “One good thing about light rail…”

    That’s not always true. The Blue Line and Yellow Line were arguably the least destructive to the urban fabric.

    The newest line has pushed the limits on what is acceptable imo.

    There were close to 80 mature trees in Downtown Portland alone that were axed just for one small segment. Not to mention the demolition and takeover of some businesses/industrial sites along the line — land that is very important to manufacturing (i.e., jobs!!!!).

    A properly functioning city (in terms of economics) is more than light rail, coffee, and low-wage service sector jobs.

    I just want people to realize really understand this concept, because it’s important for industrial and manufacturing jobs to help fuel and fund the “fun stuff” that goes along with cities (e.g., shops, dining, architecture, public spaces, etc.).

    I am very irked at that loss of industrial land the most about the most recent project.

    Surely there’s a better way to go about it than just destruction of existing buildings and trees that we’re going to see with this most recent line?

  21. I’ve said it before and I’ll say it again, I am not nor have I ever been against light rail!

    What I am against is stealing from Peter to pay Paul.

    And the lines between city and metro are so blurred that nobody can keep the two straight.

    Two government bodies duplicating each other and adding more and more administrative costs to government.

    Unfortunately for all of us that support transit the vast majority of commuters prefer to drive which means there will never be broad support for transit related taxes or projects. (notwithstanding the fact that people are virtually “forced” to use transit to get downtown or up to pill hill)

  22. @ws:

    Times are different between now and the 50s. There was less effective challenge (and fewer restraints on) the (for lack of a better term) “establishment”, which was able to more readily mobilize political and financial capital to build large projects, with fewer avenues for those opposed to object. (And the freeway system, or at least its urban parts, came at a great price). And the macroeconomics at the time favored large-scale development; with tons of readily available capital compared to middle-class wages.

    As far as the shade trees on Lincoln go; that pales in comparison to the entire blocks that must be demolished to make way for freeway construction. As far as the industrial properties being relocated, their owners are being well-compensated. Whether this will result in net employment loss (and how much), I’ve no idea–if the employees were being productively used before, there’s a good chance that they will continue to be so used at a new location. There is a possibility, of course, that one of the relocated employers will use the relocation as an event to downsize or liquidate some operations; whether this has happened I have no idea.

    I certainly agree that a property functioning city is more than LRT, coffee, and service jobs; though I’d note that the three are largely orthogonal.

    Perhaps a better route for MLR could have been chosen–though no way of connecting PSU to OMSI (if one assumes this routing is important) comes to mind that is obviously better. Tunnelling between the bridge and the transit mall would have its advantages, certainly, but at what cost?

    @Al:

    Largely, Metro and the City of Portland don’t duplicate each other, actually. Certain functions overlap, such as operation of public facilities (though not the same ones!) and things like planning, which are a big communal exercise. But the City of Portland doesn’t haul garbage or run zoos (excluding, perhaps, City Hall), and Metro doesn’t operate a waterworks, run a cop shop or fire department, or sweep and pave streets.

    As far as your allegation taht the “vast majority of commuters prefer to drive”–do they? MAX is competitive with the freeways it runs parallel to, and transit is generally competitive with cars for trips that don’t require a half-hour wait in the rain; many of the younger generation seem to require driving a car as a pain-in-the-a** which keeps them from their 24/7 love affair with their iPhones. And for the life of me, I can’t recall any barricades on the inbound freeways or on Sam Jackson Park Road, closing these to car traffic and forcing people onto transit to access downtown or OHSU; driving to either place is quite easy. You might encounter congestion or parking meters, of course, but congestion is a sign that driving is too EASY, not too difficult. Lousy restaurants, after all, are seldom crowded. And the it’s the belief that taxpayers and property owners ought to provide unlimited highway capacity and free parking to satisfy the whims of motorists, which is the market distortion. The belief that failure to provide these things (at great public and private expense) constitutes a conspiracy to “force people to use transit” is rather astonishing coming from you.

  23. “vast majority of commuters prefer to drive”

    Well, the bottom line is that, looking at the entire region, most people may very well drive. But much of that is probably because they see a distorted transportation marketplace that shows driving is the cheapest way to travel (when the hassles of using other modes are factored in). Not because people “prefer” to drive, as in really want to and would always pick that choice.

  24. In 1998, Tri-Met sent back a shorter project, basically a longer version of the Milwaukie MAX line with the North Portland segment eliminated

    I didn’t realize that only included the south portion.

    Not to mention the demolition and takeover of some businesses/industrial sites along the line

    Well, at least some of the businesses will be relocated and will continue on. But some, like the Semaphore at SE 17th & Holgate did, may just take a buyout and decide to get out of the down economy.

    notwithstanding the fact that people are virtually “forced” to use transit to get downtown or up to pill hill

    I’m not sure it’s possible for hill employees/students to get parking, but downtown Portland is just simply the market in action. There’s plenty of roads to get there (though they may be a bit congested), and there’s plenty of parking (though it might actually cost money).

    though no way of connecting PSU to OMSI (if one assumes this routing is important) comes to mind that is obviously better

    Actually, that segment isn’t really a problem. There’s only maybe 3 properties that are getting taken–the Candlelight Bar at SW 5th & Lincoln, Budget Truck Rental at 4th, and an empty radio station building between 1st & Naito.

    As for the trees, they could have put the station between 4th & 5th and made other changes so that the line and traffic lanes would be entirely within the existing cross section. It would just be the median trees that would have to go.

  25. Al M,

    Why do you continue to live in Portland and “scream” each year? Move to Beaverton and get a job in the tech corridor.

    Portland income tax screaming problem solved.

  26. “If you don’t like it, why don’t you move somewhere else” styled attacks are not allowed here — people have the right to complain about things they don’t like in their community. We can argue about whether the complaints are valid or how they should be addressed. There’s a reason the Constitution, after all, speaks to the “redress of grievances”. :-)

  27. Why do you continue to live in Portland and “scream” each year? Move to Beaverton and get a job in the tech corridor.

    Actually I would leave Portland but alas, I am here due to professional commitments.

    I don’t know even one person who voted in favor of that income tax, I wonder if there was some sort of rigging going on with it……

  28. OK Bob, I believe you, I guess that illustrates the divide between the voters here.

    BTW-I like Portland fine. It’s a nice city to live in as far as cities go.
    I don’t like living in any cities.

    I prefer a place where people are not so close together, and the noise gets rather old.

    But I really don’t much like Portland politics, it seems to me this city could really be spectacular given the right set of people running it.

  29. I should add that I know several people who I’m near certain, if asked, would tell me they voted against it. But I haven’t asked.

  30. Al,

    By the “right people running it” may we assume you mean developers, industrialists, and bankers?

    Definitely you can’t mean the progressives and neighborhood activists that the citizens of Portland have consistently chosen for past twenty-five years. Not sure what exactly is wrong with them, but something, right?

    Which is why, Bob’s objection or not, the question I asked you actually is germane.

    If you hate the politics of the place where you live, you really would be happier somewhere else. I grew up in Oklahoma but got out as soon as I could after having taken a Sociology and a Psychology course in college. I was little Goldwater-bot in high school but when presented with some actual facts about society and human motivation I had to re-evaluate the crap I’d been fed down in the Home of Okra.

    And I have never regretted leaving. In fact, I’m so happy with my choice that I don’t even go to my high school reunions to crow about my success and joy living in the Peoples’ Soviet of Washington.

    You can paint lipstick on a pig, but it’s still a pig, and you’ll only anger the pig.

    P.S.

    I can certainly agree with you that smaller places are better than bigger places, but they just don’t have much opportunity.

    P.P.S.

    Since I live north of the river I always pay Oregon Income Tax and paid the Tri-Met Tax twice when I was a direct contract in the Halcyon era before the Microsoft decision. And get very little for it..

    I can’t say I particularly LIKE paying taxes, but unfortunately, they’re the price we pay for having “a nice city to live in”.

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