Cooperative Agreements for Corridor Management (2004)

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24 CHAPTER FOUR DEVELOPING EFFECTIVE AGREEMENTS ISSUES IN CURRENT PRACTICE State and provincial officials were asked what, if any, prob- lems they have experienced when entering corridor man- agement agreements with local agencies. Almost half cited two or more types of problems, with the most common being a lack of local government understanding of corridor man- agement (54%), as shown in Figure 4. Other problems noted among public agencies included lack of agency leadership on issues relating to corridor management (31%) and local and public opposition to corridor management in general (31%). Other less common problems included conflicts among poten- tial signatories (23%) and the inability to obtain a consensus on appropriate agency roles (15%). Some respondents noted a general lack of support for corridor management, particularly in less populated states and provinces. Reported one respondent, “Most of our state is very rural. There isn’t the pressure to have an extensive corridor management program. This influences us and makes it difficult to see the need for corridor management in our more urban and growth areas.” Another respondent explained that although the agency had experienced prob- lems with opposition from property owners in one case, “the upfront delay enabled the process to proceed more smoothly in the end.” Another problem indicated by U.S. and Canadian respondents is the competition that often oc- curs between utility companies for access to highway rights-of-way, which may engender the need for coopera- tive agreements with utility providers. Respondents also identified problems they had experi- enced relating to implementing corridor management agree- ments. More than half of the respondents noted a lack of local support or local adherence to commitments as problematic. Other problems frequently noted by those surveyed were legal and political concerns when implementing cooperative agreements (23%) and the need for technical assistance per- taining to implementation methods (23%). Related com- ments included the following: • • • “Locally, commercial development is desirable from the standpoint of employment, taxes, etc. Often, ini- tial local support for access management is eroded over time by those desires.” “Intergovernmental agreements for arterial corridor access management have long-term ramifications. Changing local leadership, changing economic climates, development pressures and reductions in state and local fiscal horizons, all immediately deteriorate any pos- sible agreements.” “Lack of ability to enforce agreements can be an is- sue. This is why [we] work toward inclusion of agree- ment language in [local] comprehensive plans.” FIGURE 4 Problems entering into agreements (see survey question 10). 8% 8% 8% 15% 23% 31% 31% 54% 0% 20% 40% 60% 80% 100% No real problems Lack of clear authority to enter corridor management agreements Lack of state transportation agency understanding of corridor management Inability to obtain concensus on appropriate agency roles Competition or conflicts among potential signatories Lack of agency leadership on corridor management issues Local/public opposition to corridor management Lack of local government understanding of corridor management

25 IGURE 4 Problems etering into agreements (see survey question 10). 8% Lack of 23% 8% 15% 15% 23% 23% 54% 0% 20% 40% 60% 80% 100% No real problems flexibility to address changing needs Outdated/ineffective state corridor management policies/practices Outdated/ineffective local corridor management policies/practices Lack of state agency support or adherence to commitments Need for technical assistance on implementation methods Legal/political concerns over implementation of specific elements Lack of local support or adherence to commitments/turnover of elected officials FIGURE 5 Problems with implementing agreements (see survey question 11). Three of the 13 respondents (23%) had experienced no real problems when implementing agreements, as shown in Figure 5. Only two respondents mentioned the lack of state agency support or adherence to commitments and outdated or ineffective local corridor management policies or prac- tices as problems. Some state transportation agencies also noted a general reluctance of the state to enter into a binding contractual commitment with outside agencies that will affect future decisions. These agencies may instead take the role of facilitator and work to persuade the involved par- ties that it is in their interest to cooperate rather than to pur- sue written agreements with other jurisdictions. CHARACTERISTICS OF EFFECTIVE AGREEMENTS The literature and case studies provided a variety of clues about how to avoid some of the problems mentioned previ- ously and to craft an effective agreement. One common theme is that putting together an effective corridor man- agement agreement requires significant up-front work, in- cluding advanced planning, education, and public involve- ment. In the Arkansas State Highway 60/Dave Ward Drive example, the location of each median break was discussed individually in regard to rationale, conditions, and financial responsibilities for improvements. Obtaining that type of agreement typically involves numerous discussions with the general public and affected property owners. In that case, the MPO staff walked the corridor and spoke one-on- one with affected business and property owners— something that MPO staff attribute to the success of the process. The actual agreement is only a few pages long and basically represents a ratification of the plan. Another theme is that parties to the actual agreement should be kept apprised of the substantive aspects of the plan throughout the process to ensure a smooth transition from plan to agreement. A consensus-building manual pub- lished by the Urban Land Institute offers similar advice (5): In the best cases, individuals with formal decision-making au- thority will have participated directly in the process or been kept well informed of a group’s deliberations. If they know what is go- ing on, they will not be caught off guard when the group offers its recommendations. (This is also the case with the general public. The more communication, the less likely that the group’s recom- mendations will be attacked as “back room deals.”) The Pennsylvania Intergovernmental Cooperation Hand- book further recommends a deliberate approach to drafting agreements with several built-in opportunities for review and comment by affected parties, as follows (21): a. Assign the drafting of the agreement to a professional staff person or solicitor familiar with the work of the study committee. b. Have the study committee review and revise the agreement as needed to implement the idea. c. Distribute copies of the draft agreement and ordinance to all municipalities for review by elected officials, staff and mu- nicipal solicitors (attorneys). Comments should be requested by a specific deadline, a deadline far enough in the future to al- low municipal officials to review and respond to the drafts. d. Make certain the study committee members follow-up with their municipalities to insure a complete and timely review. e. Prepare a revised draft based on the comments received. If the changes are significant or controversial, additional review by the study committee and/or repeating step “c” above may be required. Otherwise, the revised draft can now be distributed to each municipality and advertised for adoption with a rela- tive assurance that all participating municipalities will enact the same agreement. A single, joint advertisement can be used for this purpose as long as the date and location of each mu- nicipality’s action is included.

26 The ICMA has found that “All intergovernmental agreements that endure follow similar principles” (2). Ac- cordingly, that association compiled the following list of suggestions for successful agreements: a. b. c. d. e. f. g. h. i. j. k. l. Examine state law to determine any requirements for co- operative agreements. Create a study group that understands the process. Appoint a drafter with legal experience to draft the agreement. Be inclusive and sensitive to historical alliances or ani- mosities. Proceed in small steps—consider scaling back the scope if necessary and build from there. Allow sufficient time for negotiation based on the com- plexity or number of partners. Circulate a draft agreement and provide appropriate dead- lines for comment. Be flexible and patient during the revision phase and will- ing to take a different tack. Circulate the final draft if the changes are significant. Obtain official approval from all parties. Share the credit by jointly or simultaneously announcing the finished agreement. Prepare for success and the likelihood for additional cooperative tasks or efforts. Additional guidance on the characteristics of a durable agreement appears in the Urban Land Institute consensus- building manual provided here. The authors of that work noted the importance of integrating the substantive aspects of the agreement “into the formal decision-making proc- esses of a city council, agency or board of directors” (5). Durable agreements are HONEST, because they are a. based on the best-available, jointly developed information; b. founded on realistic projections of capacities and costs; c. ensured by all parties’ intent to implement them; and d. developed with the involvement of all parties. Durable agreements are ACCEPTABLE because they a. resolve the grievance that brought the dispute to a head [or address commonly held problems and objectives]; b. acknowledge past problems and address them; c. meet the underlying needs of the parties; and d. are arrived at by a process perceived as fair by all parties. Durable agreements are WORKABLE because they a. provide incentives (benefits) for all parties to implement; b. do not disadvantage an excluded party; c. recognize possible problems or changes in the future and in- clude procedures to deal with future changes or acknowledge the need for renegotiation; and d. build working relationships among the parties to implement the deal. Possibly the best way to implement agreements is to in- corporate the “meat” of the agreement, such as an access management plan, into local comprehensive plans, regula- tions, and codes. Similar advice was provided by several of the survey respondents. Another suggestion from the literature is to establish a monitoring process to help with implementation. This could involve creating a body whose role is to monitor progress and report back to the participating agencies (5). Enforcement could also be enhanced through a joint ap- proval process. For example, several of the agreements re- viewed required approval by more than one if not all part- ners for an amendment to an access management plan. One element not often found in agreements is a formal mechanism for revisiting an agreement within a specified period of time. Because situations change over time, some issues addressed in an agreement may need to be updated in response to new conditions. It was noted in the literature that “Many agreements, especially those developed in the midst of a changing political environment, will be affected by changing parties, budgets, and political contexts. A mecha- nism to address these changing circumstances through renego- tiation may be desired” (5). This is particularly true for access management plans, which may also need to be revisited if land use or transportation changes occur that have a signifi- cant impact on the plan. Establishing a regular time line for discussing salient features of a cooperative agreement can proactively address unforeseen changes and help head off problems or escalation of concerns. An example of a clause that is helpful for both monitor- ing and renegotiation may be found in the Colorado US-85 Access Control Plan, which states that “The Agencies agree to confer with respect to the continuation of this Agreement, or if there is the necessity for any amendments hereto, every three years” (14). A Colorado city that has long been a party to an agreement with CDOT related to an access management plan is pleased with the 3-year time frame for review because “That way if something isn’t working, we have a timetable built in to revisit those items and update them and amend the plan as needed.” That city also reported that “it helps with the budgeting proc- ess, because we know down the road if we need to budget for an update to our access management plan.” An interesting example of a renegotiation statement was found in Municipality of Metropolitan Seattle, Resolution No. 6021, which established a seven-point protocol related to communications on cooperative land use planning. Item 4 stated that “we request that if a party or assigned partici- pant to a group discussion should disavow the process, the participant should first advise the group and allow the group the opportunity to seek a remedy. In the event a par- ticular effort for remedy is unsuccessful, any party or par- ticipant may withdraw without prejudice” (24). LESSONS LEARNED The survey of state and provincial transportation agencies inquired about lessons that respondents had learned that

27 they would pass on to others in regard to cooperative agreements or achieving cooperation between agencies on corridor management. The following is a list of lessons or suggestions noted by respondents, grouped by general topic. • • • • • Agencies reported that it is important to reach out to local governments and get to know the issues that af- fect them. – Try to make local governments equal partners in corridor management. Help them manage adja- cent local corridors as a part of the process. – Share the vision for the corridor and make fairly obvious the benefits needed to obtain local buy- in. – Make cooperation effective by encouraging the participants and decision makers to feel that it is accomplishing their “individual” goals. – Clearly spell out intentions, work together, commu- nicate, and share information. – Cooperative agreements should not only satisfy individual problems, but always address the corri- dor as a whole. There is a need to provide ongoing technical assis- tance. – Because smaller local governments do not have the staff or expertise to develop and update com- prehensive plans to reflect corridor management plans, the state agency must develop access man- agement guidelines and make a major investment in training local governments in their application. – Establish a continuous process for education and technical assistance to local governments, because staff and officials change. – In the absence of enforceable agreements, provide continuous education to ensure that the communi- ties and decisions makers understand (and agree with) past decisions and commitments. This can require technical and knowledge resources that are not on hand in the communities involved and can also require a level of personal and profes- sional interaction that is not “normal” to DOT ac- tivities and, in the current environment, is not supported by available resources. There should be ways to improve public outreach. – Local governments and the state need to work to- gether early in the process with the public and property and business owners. Have videos that show before-and-after examples of other areas where managed access programs have been im- plemented. – There must be a committed champion for the con- cept who can articulate to affected landowners the reasons for doing it. The local government must be supportive at both a political and staff level. – Government has generally been unwilling to take the time to sit with people and walk them through the process. It has been found that most people are supportive, once we explain how the median will work. – It is crucial to have early and continued public participation. Agencies reported that it is necessary to establish policies and procedures to improve enforcement. – There is a need for more authority, because inter- governmental agreements do not have a lot of “teeth.” For long-term, enforceable implementa- tion, the elements of the agreement need to be- come part of a decision document; that is, a plan. Thus, it needs to go from an intergovernmental agreement to a planning document, and then be- come final in a comprehensive plan. – Establish a broader structure, such as a commit- tee, to administer the corridor management plan or effort, through the agreement that will formal- ize the decision-making process and build broader internal support of a partner. – Encourage elected officials to be more consistent in their enforcement of policy. There should be efforts to provide mechanisms for change. – Mechanisms for change are very important, be- cause over time there will need to be some changes and the partners need to be willing to make compromises from time to time to keep an agreement alive. Otherwise, the agreement be- comes very inflexible and unattractive. – The agreement is only as strong as the willingness of the two parties to work toward the intended outcomes. A change in administration or elected officials can lead to a loss of understanding of the original purpose for the agreement and a subse- quent loss of ability to accomplish the intended outcome. A final lesson is that agencies should persevere and rec- ognize that the good idea may be delayed by outside forces beyond the control of any single partner to the agreement. These forces may be political or economic or relate to other considerations. The associated issues will need to be worked out before the parties can refocus their attention on their role in the agreement.