By James Howsley, Attorney and Joseph Schaefer, Paralegal and Land Use Planner
Large retail developments demand signalized access because it provides full turning movements into and out of the site. Land use approvals often require developments to build signalized intersections, which occurred in Sherwood about 20 years ago with the Sherwood Market Center and the Sherwood Cinema Center, located on opposite sides of the Tualatin Sherwood Road where it intersects with Highway 99W. Neither property has access to Highway 99W, and thus both rely on the signalized intersection – which they built and paid for – for access.
Recently Washington County decided to remove the signal, in an effort to improve traffic flow, and the owners of the two properties appealed. The Land Use Board of Appeals (LUBA) ruled that the county decision contained several flaws and issued a mulligan. The County asserted exclusive authority to make improvements within the existing right-of-way and that the decision is not subject to LUBA’s review. However, the exemption of transportation projects from LUBA jurisdiction only applies to projects which are “consistent with the comprehensive plan and land use regulations.”
LUBA reviewed the proposed removal project against both county and City of Sherwood land use regulations, especially their respective Transportation System Plans (TSP), which are part of the comprehensive plans. The provisions of the city and county TSPs conflicted, and the project design was inconsistent with both. For example, the county TSP designated the road as five lanes; whereas, the project would increase it to six. The city TSP allows a maximum block length of 530 feet; however, the project would create a 1,200 foot block.
LUBA also discovered that governance of the road was not well documented, nor was there an intergovernmental agreement on the topic. LUBA questioned whether the county maintained exclusive planning and permitting authority over the road, absent city consent, based on the statute that governs the transition of county lands to cities. LUBA emphasized that the planning and permitting relationship for a county road within the city was not clearly explained by the decision or in the briefing.
The property owners argued the removal project conflicts with the conditions of approval that required them to build the signalized intersection and the city code provision that compels compliance with the conditions. The county skirted that argument, and LUBA instructed the parties to provide more information and analysis on the issue.
Perhaps most importantly, the property owners asserted the change would leave them without reasonable access. In 2011, the legislature passed a new law prohibiting counties from using their authority over county roads to deny abutting properties access sufficient to serve the traffic from allowed uses. The county did not respond to this argument, and LUBA ruled that they must. Given that the original land use decisions mandated construction of the signalized intersection to serve the retail uses, and that the properties have no access to the side street (99W), it will be difficult for the county to wiggle out of this one. But they are trying by appealing the decision to the Court of Appeals.
This case is a long way from being over, yet there are several steps that local governments and property owners can take to reduce risks. First, recognize that in Oregon the right of abutting properties to reasonable access to county roads is now written into the law. If an access must be restricted or closed, counties are compelled to provide a reasonable alternate access or pay for the damages.
Second, the TSP matters. It is the primary governing document for local transportation facilities, and contrary decisions that can be successfully challenged. The TSP includes access spacing standards for the minimum and maximum distances between driveways and intersections; however, those standards vary with street classifications, and in growing areas the classifications change over time. Proactive engagement with the TSP is the best insurance against amendments that could limit access. Do the homework and ensure consistency among all levels of government that may have overlapping responsibility for managing a road. It is not always necessary to roll over when somebody says the access is changing.
Third, transportation agencies are constantly striving to increase traffic flows on busy commercial streets, which is accomplished by restricting or closing access. Anything that provides convenient alternative access is worth exploring. Corner properties without access on one side, such as these two properties which lack access to Highway 99W, obviously are at greater risk.
Washington County has been working for years to improve east-west travel around Wilsonville, Sherwood, and Tualatin. Efforts to create a new, high-volume right-of-way between I-5 and Highway 99W have not come to fruition. In this instance, the county attempts to redesign a portion of Tualatin Sherwood Road to handle more traffic, which inevitably conflicts with convenient access to abutting properties. Regardless of whether this one signal stays or goes, the tension between the mutually exclusive goals of improved traffic flow and good property access will surely increase as the remaining vacant properties in this corridor fill in.