We set out the undisputed facts from the record. The South North MAX Light Rail Project
involves the construction of a light rail line from Clackamas Town Center in Happy
Valley, Oregon, to Vancouver, Washington, via the cities of Milwaukie and downtown
Portland. To aid that project, the legislature enacted a law in 1996 that was never
codified into the Oregon Revised Statutes: Or Laws 1996, ch 12. Before turning to
the specific issues presented here, we first consider the 1996 act in some detail.
The act established decision-making procedures for the South North MAX 9 Light Rail
Project and to provide for expedited appellate review of those decisions. The procedures
are intended to maximize federal funding for the project and to ensure that the project
is constructed in a timely and cost-effective manner. Utilization of the decision-making
procedures results in a "land use final order," a defined term that means:
"a written order or orders of [Metro] council deciding:
"(a) The light rail route for the project or project extension, including its location;
"(b) Stations, lots and maintenance facilities for the project or project extension,
including their locations; and
"(c) The highway improvements for the project or project extension, including their
The procedures that the legislature prescribed in the 1996 act operate as follows.
First, the Land Conservation and Development Commission (LCDC) was required to establish
the criteria later to be used by Metro to make its decisions leading to a land use
final order. (Those criteria since have been adopted.) TriMet then applies to Metro
for a land use final order. Id. § 6(1)(a). Metro, using the criteria established
by LCDC, follows prescribed procedures to determine whether to enter a land use final
order or to refer the matter back to TriMet. Id. §§ 6(1)(b), 7. When Metro adopts
a land use final order, that order must be accompanied by findings of fact.
At issue here is the fifth land use final order adopted by Metro relating to the
South North MAX Light Rail Project. (The first, adopted in 1998, addressed the South
North MAX Light Rail Project as a whole. That original land use final order has been
amended three times previously by separate land use final orders.) The present land
use final order addresses one segment of the South North MAX Light Rail Project,
known as the Columbia River Crossing Project. The Columbia River Crossing Project
is the portion of the South North MAX Light Rail Project that extends from the Expo
Center and the Interstate 5 (I-5)/Victory Boulevard Interchange in north Portland
to the Oregon/Washington state line on the Columbia River.
Metro's land use final order for the Columbia River Crossing Project approves many
highway improvements, and it is the extent of those highway improvements that form
the basis of petitioners' objections to the land use final order. Although the land
use final order contains less controversial provisions, such as realignment of the
light rail route and relocation of the Hayden Island station, it also approves the
replacement of the existing I-5 bridges across the Columbia with new northbound and
southbound bridges. Only the lower deck of the new southbound bridge will carry the
light rail line; the upper decks will carry highway traffic. The land use final order
also approves the following:
"widening of Interstate 5 in both directions between approximately N Victory Boulevard
and the Oregon/Washington state line on the Columbia River; new or modified interchanges
at N Marine Drive, Hayden Island and Victory Boulevard; a new integrated rail/vehicular/bicycle[/]pedestrian
bridge connecting Hayden Island with the Expo Center; and roadway realignments, widenings,
modifications and new connections within the project area."
Petitioners sought review of Metro's land use final order before LUBA, arguing that
the land use final order both exceeded Metro's statutory authority and "was not supported
by substantial evidence in the whole record." Among other arguments, petitioners
asserted that Metro had exceeded its statutory authority by adopting a land use final
order that was, they contended, primarily devoted to highway improvements. According
to petitioners, the highway improvements that the order approved form 75 percent
of the cost of the Columbia River Crossing Project. Petitioners asserted that those
highway improvements were not sufficiently connected to the light rail project because
they were "not needed to mitigate adverse traffic impacts associated with the light
rail route, stations, lots or maintenance facilities." Petitioners additionally argued
that the land use final order was not supported by substantial evidence because there
was no evidence that the highway improvements were necessary for the light rail.
LUBA concluded that the 1996 act allowed Metro to choose the highway improvements
that could be included in the project. ("The text of the 1996 statute simply provides
no basis for limiting the highway improvements that may be included in the Project
in the way petitioners argue.").
LUBA noted that the act defined the project to include "'the light rail route, stations,
lots and maintenance facilities, and any highway improvements to be included in the
project.'" The definition of "highway improvements" similarly imposed very few limits
on what highway improvements could be made part of the project, requiring only that
the improvements must have been described in the project's draft and final environmental
"'Highway improvements' means the highway improvements, if any, to be included in
the project or project extension. The highway improvements shall be selected from
among the highway improvements, if any, described in a Draft Statement or Final Statement
for the project or project extension.'"
All the highway improvements at issue here had been described in the draft environmental
LUBA additionally noted that one of the criteria that LCDC had adopted referred to
"associated highway improvements." Even assuming that that criterion limited the
highway improvements to those "associated" with the light rail, LUBA concluded that
that relationship had been shown: Metro specifically had found that the highway improvements
were "necessary to obtain support for the necessary local funding from Washington
for the light rail component."
LUBA also rejected petitioners' claim that the highway improvements had to be supported
by substantial evidence showing that they were necessary to the light rail siting.
Petitioners had not identified any law requiring such evidence, and LUBA already
had concluded that the 1996 act did not require that the improvements be "necessary"
to the project.
Petitioners argue that Metro exceeded its statutory authority because Metro has not
been given "unbridled discretion" over what highway improvements may be included
in the South North MAX Light Rail Project under the 1996 act. Petitioners assert
that the highway improvements must have a "sufficient nexus" to the light rail siting.
Petitioners contend that the only highway improvements with a "sufficient nexus"
are those "in furtherance of or necessitated by the Light Rail siting." The land
use final order at issue here, petitioners urge, contains significant highway improvements
"that not only dwarf the Light Rail siting but, at times, are unrelated and not necessitated
by the Light Rail siting." Petitioners identify the highway improvements to North
Marine Drive in particular as not being necessitated by the light rail siting.
Petitioners attempt to draw support for their argument from a number of provisions
of the 1996 act. In the main, petitioners rely on the definition of "project":
"'Project' means the portion of the South North MAX Light Rail Project within the
Portland metropolitan area urban growth boundary * * *. The project includes the
light rail route, stations, lots and maintenance facilities, and any highway improvements
to be included in the project."
Because the other items in that list -- "the light rail route, stations, lots and
maintenance facilities" -- are all necessary to the light rail, petitioners conclude
that a similar restriction should exist regarding "highway improvements."
Petitioners also note that a number of provisions of the 1996 act qualify the term
"highway improvements" with the prepositional phrase "for the project." (1996 act
establishes the only procedures applicable to land use decisions "on the highway
improvements for the project"); (directing LCDC to establish criteria to be used
by Metro Council to determine "the highway improvements for the project"); (land
use final order must establish "the highway improvements for the project"). Petitioners
suggest that the phrase "highway improvements for the project" requires that some
relationship -- viz., a "substantial nexus" -- exist between the light rail and the
We need not determine to what extent (if any) the 1996 act requires highway improvements
to have a demonstrated relationship to the light rail siting.As we shall explain,
Metro found that the construction of new highway bridges across the Columbia River
were required politically, to obtain the necessary Washington State support for the
project. Metro also found that the other highway improvements were necessary either
because of the new bridges or because of the light rail itself. Thus, even if petitioners
are correct that the 1996 act permits only those highway improvements that are necessary
to the light rail siting, that necessity exists for all the highway improvements
described in Metro’s land use final order.
Metro found -- and petitioners do not dispute -- that the political necessity of
new highway bridges over the Columbia was demonstrated early on, and it was entirely
beyond the control of Metro. Washington State approval is necessary because the project
extends into Vancouver, but the voters of Clark County, Washington, rejected at the
ballot box a light-rail-only bridge across the Columbia. As Metro explained, "[i]t
was clear from this action that a stand-alone light rail project was not politically
acceptable to the voters of Clark County."5 14 Afterward, a bistate group called
the I-5 Transportation and Trade Partnership was formed to examine the question.
In its published conclusions, the Partnership explained that the area transportation
problems required a comprehensive solution. As Metro later summarized the Partnership's
conclusions, Oregon and Washington had different interests: Although "Oregon interests
required emphasis on a multi-modal solution * * * because of the difficulty of
accommodating [traffic] demand through a highway-only expansion of I-5," Clark County
interests "needed a highway element because the land use patterns of Clark County
require a system with greater dependence on auto access."
For those reasons, it was politically impossible for the light rail project to proceed
without also building new interstate bridges across the Columbia River:
"The Council finds that the Project reflects negotiation and compromise among governmental
bodies and that for all practical purposes, the light rail component could not have
gone forward without the highway component and the highway component could not have
gone forward without the light rail component."
Or as Metro later summarized it: "There is no light rail without the freeway bridge[s]
being replaced." Thus, Metro found, "the highway improvements are necessitated by
the light rail improvements."
Although political realities may have made the new bridges necessary, the bridges
themselves made additional highway improvements necessary, including alterations
to the North Marine Drive interchanges specifically mentioned by petitioners.6 The
light rail construction itself also made necessary other changes to North Marine
Drive.7 Petitioners do not attempt to refute those findings by Metro.
5 More specifically, Metro explained in its findings of fact that the original project
proposal would have crossed the Columbia River
"via a proposed new bridge for light rail transit purposes only west of the existing
I-5/Interstate Bridge. TriMet successfully obtained voter support of General Obligation
Bonds for one-third of the local match in November 1994 by a wide margin. That ballot
measure was predicated on a state legislative contribution of another one-third and
a Washington State/Clark County contribution of the final one-third. In early 1995
the voters of Clark Co. turned down a ballot measure for their local match contribution[.]
It was clear from this action that a stand-alone light rail project was not politically
acceptable to the voters of Clark County." (Emphasis added.)
6. The findings of fact by Metro state:
"The Council further finds that construction of these new bridge structures will
necessitate improvements to the I-5 highway and interchanges, including the Hayden
Island and Marine Drive Interchanges, and to the local street network that connects
those interchanges including realignments, widening or extensions of or new connections
between N Marine Drive [and other listed streets] * * *. [Metro Council] also finds
that additional highway improvements are needed to integrate the transit corridor
extension into the existing transportation network and to facilitate multimodal access
to and from the existing light rail station at the Expo Center and a new light rail
station at Hayden Island."
Elsewhere in the findings, Metro explained:
"[T]he associated highway improvements directly and indirectly serve the light rail
improvements by accommodating the alignment (e.g., new I-5 bridges, new arterial
bridge over the North Portland Harbor) or providing regional and local access to
the Expo Center and Hayden Island light rail stations (e.g., I-5 interchange improvements,
access and circulation improvements and roadway modifications on Hayden Island and
in the vicinity of the Marine Drive interchange). The Council further finds that
some of the highway improvements are needed for engineering purposes to accommodate
the new bridge containing the light rail alignment and the modifications to the I-5
interchanges and their approaches."
7 Because the light rail tracks required "grade-separated crossings" with
existing roads, those crossings "necessitate modifications to the I-5/Marine Drive
Interchange and connecting roadways including the realignments of N Vancouver Way