From: 	Greg Kirsch <gregk@opechee.com>
To:	Jean Fraser <JF@portlandmaine.gov>
CC:	Alex Jaegerman <AQJ@portlandmaine.gov>, Mark Woglom <markw@opechee.com>, Steve Long <stevel@opechee.com>, Andrew Pike <andrewp@opechee.com>
Date: 	7/19/2012 2:20 PM
Subject: 	RE: Staff TDM suggestions

Jean ‑ Thanks for the reply.  Yes, indeed, I think we have started a useful conversation on how to implement a rather new requirement (TDM) in a somewhat unusual situation (mixed‑use speculative condominium without identified occupants).  That conversation has both legal aspects (what the ordinance and technical standards require) and practical aspects (what makes sense under the circumstances to achieve the goals of the ordinance and technical standards).

To the extent that our conversation is of a legal nature, (i.e., what the ordinance and technical standards require), I think it is quite clear that the ordinance points to the technical standards for more detailed clarification of a very short section in the ordinance.  This is a typical pattern in federal, state and local administrative law (short, broad statutory language supplemented by detailed regulations).

Yes, the ordinance says that a plan shall employ a "combination" of specified elements, but it does not say a combination of all of the elements.  A perfectly reasonable interpretation would be that a plan shall employ a combination of some of the specified elements.

In situations like this where there is more than one plausible reading of an ordinance, one looks to the technical standards for clarification.  And, there is plenty of clarification to be had.  I believe the only reasonable conclusion is that preferred car pool parking is one of many suggested TDM incentives that may be employed.  The City's TDM website www.tdm2go.com<http://www.tdm2go.com> is consistent with that interpretation:  preferential car pool parking is one of a multitude of potential TDM measures listed in the downloadable TDM Plan To‑Go, and it is not given any more or any less weight than any of the eight auto‑related measures that are listed.  If that is not the intention, then I strongly suggest that the City "fix" the technical standards and the tdm2go website so that well‑meaning applicants will not be misled.

Ideally, our final submission package would include a revised TDM Plan with reflecting a consensus with staff as to suggested changes.  Unless we reach such consensus very soon, I would rather not submit an updated TDM plan, and I suggest instead that we let this detailed email exchange speak for itself as to the positions of applicant and staff.  If need be we can submit these emails as background to the Board, or I can explain our positions at the public hearing.  As I mentioned, all of the other suggested changes are are acceptable, and we are willing to add language to make preferential car pool spaces a highly recommended measure that will be given great weight in the evaluation of the adequacy of each employer's TDM plan, but I am not willing to accept a staff mandate of one particular TDM measure in light of the flexible nature of the TDM ordinance and technical standards.

Greg Kirsch | VP & General Counsel | Opechee Const. Corp. | 11 Corporate Dr. | Belmont, NH 03220
office 603.527.9090 | fax 603.527.9191 | cell 603.387.1982 | gregk@opechee.com<mailto:gregk@opechee.com>

________________________________
From: Jean Fraser [mailto:JF@portlandmaine.gov]
Sent: Thursday, July 19, 2012 1:39 PM
To: Greg Kirsch
Cc: Andrew Pike; Mark Woglom; Steve Long; Alex Jaegerman
Subject: Re: Staff TDM suggestions

Greg

Thank you for this, though I would note that normally the Planning Board has an actual TDM plan to review in the context of transportation, development and parking information and that the ordinance itself states "The TDM Plans shall establish trip reduction targets and shall employ a combination of the following elements to achieve these targets: ... (with 5 specific measures listed).

My aim in sending you some advance notice of staff concerns is to start this conversation and get to a clear and hopefully agreed recommendation for the Planning Board.  We will discuss this further internally and follow up soon after your final submission is with us.

Jean

>>> Greg Kirsch <gregk@opechee.com> 7/19/2012 9:32 AM >>>
Jean ‑ Thanks for taking the time to let me know the staff's thinking.  I am on board with the clarifications and enhancements to our TDM Plan that you propose, with one exception:  I do not think it is appropriate for the staff or board to mandate dedicated car/van pool spaces when the TDM standards clearly give the developer and users flexibility in how to achieve TDM goals.  Let me be more specific.

I carefully reviewed the Technical Standard Manual on TDM.  I noted that the author(s) of the TDM provisions knew how to mandate certain things when that was the intent.  See for example 1.13.6 Education ‑ "The TDM plan shall at a minimum include provisions for the following" or 1.13.7 Monitoring ‑ "All TDM plans must include provisions for monitoring . . ."

I also noted that the author(s) know how to make certain things optional when that is the intent.  See for example 1.13.8.2 Incentives ‑ Incentives available to users and/or occupants of the development may be incorporated and may include the following . . ."

"Preferred parking for car pool" is the third item listed under 1.13.8.2 "Incentives" that "may be incorporated" and "may include . . ."  It seems quite clear from the language that "incentives" are an option that "may be incorporated" into a TDM plan and that IF incentives are selected as an option, then preferred parking for car pools is an optional incentive that "may be included" among the selected incentive, or may not be included.  If the City intends otherwise, I would suggest that the Technical Standards Manual should be amended.

With all due respect to the staff's good intentions regarding TDM, I am not willing to dedicate any specific number of car pool spaces at this time.  I am willing to amend out TDM plan to state that preferred parking for car pools is a highly recommended and highly favored TDM measure and encourage employers to do so unless they select other means to incentivize car pooling.  This is a fairly complex mixed‑use development, with a variety of parking options for the office employers, including purchasing spaces in the Middle St. Garage, using daytime valet parking in the Fore St. Garage, and using Ocean Gateway Garage, which was subsidized by the City to promote precisely this sort of redevelopment in the Eastern Waterfront.  I think it makes much more sense to wait and see the mix of users, and develop customized TDM plans, which may well promote car pooling by other means (parking cost subsidies for car pools, free valet parking in Fore St. Garage for car pools, employer‑purchased spaces in Ocean Gateway for employees that self‑monitor car pool usage,etc., etc.).  I truly believe that the spirit and intent of the TDM provisions is to provide a tool box of measures and let the employers pick and choose what will work for them.

I would like to come to an understanding with staff on this prior to the public hearing, but if we are not able to do so, I will explain the above to the Board at the public hearing and ask them for approval without dedicated car pool spaces on site.

I would be happy to discuss this further ‑ maybe we could have a phone conference.

Greg Kirsch | VP & General Counsel | Opechee Const. Corp. | 11 Corporate Dr. | Belmont, NH 03220
office 603.527.9090 | fax 603.527.9191 | cell 603.387.1982 | gregk@opechee.com<mailto:gregk@opechee.com>

________________________________
From: Jean Fraser [mailto:JF@portlandmaine.gov]
Sent: Wednesday, July 18, 2012 3:32 PM
To: Greg Kirsch
Subject: Re: Jordan's II TDM

Greg

I am following up on the TDM to let you know staff thinking and what is likely to be recommended to the Board.

As is stated in the TDM, the purpose is to create an incentive for commuters (and visitors where possible) to find alternatives to SOV travel to the site.  The two main "measures" that the future Condo Association should be promoting is car sharing and encouragement of employees to use public transit, cycling and walking.

We would like to have future unit owners understand that the TDMs key components would be effective car/van sharing and incentives to encourage public transit use and other alternatives to SOV.

Effective car sharing requires dedicated car/van pool parking spaces at the most convenient locations within the garage and this can only be achieved by designation of the spaces now with future ownership being by the Condo Association, as car sharing has to be coordinated over all employers. A single TDM coordinator (taking over from you) might be best until targets are met.

So I anticipate there will be a condition of approval that covers (this is preliminary at this stage and still up for further discussion):

 *   Condo docs that require TDM plans and specify participation in car sharing schemes and providing incentives for people to use public transit, bicycles and walking;  also spell out reporting process (see below);
 *   Site plan to identify at least some car pool priority parking spaces which would be owned by the Condo Association to support the car sharing aspect of the TDM (s);
 *   Year 1 report (Planning Board may decide this should be referred to them) to also include a detailed TDM Plan for the complex (including clarification of which one person will be accountable for coordinating and promoting the TDM, as a committee may not be effective) for those measures that cut across all/most units as well as reporting on employer specific measures and how surveys and monitoring data is being handled;
 *   Year 2 report (to Planning  Division and City's TDM manager, since it may still be early days) to also monitor parking and SOV reductions against targets and clarify what amendments/new measures need to be introduced.

Thank you
Jean

Jean Fraser, Planner
City of Portland
874 8728