In a move lawyers called “highly unusual,” Portland City Council declined to accept the terms of a legal settlement over the city’s adherence to the Oregon Bike Bill, which had been negotiated by the city attorney. Now, the $6 million settlement—which would be used for bike infrastructure projects around the city—is in jeopardy.
News of City Council's apparent rejection of the settlement was first reported in BikePortland.
The settlement is the product of a 2022 lawsuit filed against the city by bike advocacy group BikeLoud PDX. The plaintiffs argued that Portland was out of compliance with a state law requiring local governments to include bike facilities on new streets or those undergoing major reconstruction. The 1971 law, known as the Oregon Bicycle Bill, contains certain exceptions, but generally applies when a city or other agency is carrying out total street repavement projects.
The plaintiffs say after an extensive negotiation process with the city attorney’s office and Portland Bureau of Transportation (PBOT) leadership, the two sides came to an agreement on the terms of a settlement. The settlement agreement included a $6 million investment in bike infrastructure around Portland. Plaintiffs say the specific investments were chosen to be a “win-win” for both sides of the case.
The negotiated settlement would require PBOT to adhere to the Oregon Bike Bill and provide a methodology for doing so. It also would mandate the city invest $3 million in infrastructure to make it safer for kids to ride their bikes to school, set up a plan for a shared bus and bike lane on 82nd Avenue, and build bike lanes on a stretch of inner Northeast Sandy Boulevard, among other projects.
BikeLoud Vice Chair Kiel Johnson called the settlement “one of the largest and more effective investments in biking our city has ever made.” Plaintiffs also think it would make future transportation projects less susceptible to political pressure.
Thus far, councilors have discussed the lawsuit solely during private executive sessions, so it’s unclear why they chose to reject the terms of the settlement. Scott Kocher, one of the attorneys representing the plaintiffs, said the Council’s actions in this case have been out of the ordinary.
“The City Council has to approve all settlements, and they’re typically approved,” Kocher told the Mercury. “It would be unusual for the city attorney and its delegates to enter into a settlement and then somehow have a wake-up call that they didn’t have the authority to settle, or they weren’t in adequate communication with Council members who were going to have strong opinions.”
In other words, when the City Council approves a legal settlement, it’s typically the final phase of a long process councilors likely had little involvement with. At least, that’s how it’s been in the past. Some current City Council members now seem frustrated about the expectation that they’ll simply sign off on settlement agreements, especially when those agreements have policy and budget impacts.
“The City Council is not a rubber stamp,” Councilor Sameer Kanal said in a statement to the Mercury. “Settlements might on occasion force policy changes and project investments; however, the specifics of those should be discussed with Council in advance of a tentative attorney agreement with plaintiffs.”
Several other city councilors declined to comment on the case. With the exception of Councilor Dan Ryan, none of the current Portland City Council members were in office when BikeLoud filed its lawsuit in 2022.
Without swift action from the Council, the case will go to trial. That will require both plaintiffs and the city to expend more time and resources on the case, and will put the ultimate result in the hands of a judge.
“If we go to trial, frankly, neither side is likely to get a good result,” Kocher said. “When a judge strictly interprets the Oregon Bike Bill and applies it, there’s no opportunity for win-win negotiations. A judge is just going to say, ‘Okay, what are the legal claims?’ And go through them one by one.”
The lawsuit alleged the city of Portland “has no policies or procedures to ensure compliance” with the Oregon Bike Bill, and included nearly two dozen examples to illustrate the point. BikeLoud pointed to PBOT’s work on Southeast Hawthorne Boulevard between SE 23rd and 50th Avenues as a recent example. In 2021, PBOT repaved SE Hawthorne and reconfigured the lane design, in an attempt to make the street safer and more accessible for pedestrians and bus riders. PBOT initially considered including a bike lane on Hawthorne as part of the project, but the agency ultimately decided against it, despite efforts from bike advocates and some local business owners.
The lawsuit also alleges the city failed to abide by the law on NW 13th Avenue, NW 23rd Ave, NE Killingsworth, SE Division Street from SE 10th Ave to SE Cesar Chavez Boulevard, 82nd Ave, and the entirety of the 24-block “Hoyt Yards” development in Northwest Portland’s Pearl District, to name a few examples. BikeLoud and the 15 individual co-plaintiffs who signed onto the lawsuit said they suffered “real and probable injury by virtue of their inability [to] safely and efficiently” ride their bikes and walk on the streets identified.
“The relief requested in this case will have a practical effect on their rights to the safe and efficient use of the public right-of-way and transportation facilities at the initially identified locations and citywide,” the lawsuit says.
Kocher said the plaintiffs kept efficiency in mind when negotiating the settlement agreement. Instead of demanding PBOT add bike facilities to the recently-repaved Hawthorne, for example, they focused on ensuring the city includes bike lanes when carrying out street repaving projects in the future, in accordance with state law.
A letter from the plaintiffs asking Portland City Council members to approve the settlement noted the investments they negotiated are “intended to achieve the greatest benefit for relatively small additional expenditures.”
The settlement would set aside $3 million for improvements on neighborhood greenways frequented by students riding “bike buses” to and from school, in accordance with plans proposed by local bike bus advocates.
“Prioritizing these locations city-wide maximizes return per dollar spent,” BikeLoud’s letter to City Council reads. “The settlement directs that implementation follow the proposal that is in development by bike bus advocates, so their work is supported rather than disrupted.”
The plaintiffs say they also considered mutual benefits when negotiating two smaller, “win-win” investments in the settlement agreement. The settlement would require PBOT to carry out safety improvements on neighborhood greenways parallel to Hawthorne, which have already been designed (but not implemented) by the city. It would also mandate the city build bicycle lanes on Northeast Sandy Blvd between NE 14th and 28th Avenues as part of an upcoming sewer project on the street.
In some cases, the plaintiffs say they’ve agreed to significant compromises in order to expedite the process. For example, the settlement would mandate PBOT build Business Access and Transit (BAT) lanes along the full length of 82nd Avenue as part of the city’s ongoing work on that street. BAT lanes prioritize bus travel, but are open to car traffic turning right at signalized intersections. They’re also open to people riding bikes, who often feel safer riding in a bus-priority lane. BikeLoud representatives said they believe they have the legal grounds to demand the city install separate bike lanes along the entirety of 82nd Avenue, but agreed to settle on a middle ground.
Kocher said a judge would be unlikely to make such concessions.
“If the judge agrees with us that some or all of the locations we've identified are Bike Bill violations, the court would issue an order that PBOT would be required to comply with,” Kocher said. “That court order could be extremely expensive, but PBOT must comply with the court order, regardless of whether or not they feel they have the funds.”
That scenario is likely why the city agreed to settle in the first place.
Portland Budget and Finance Communications Manager Carrie Belding told the Mercury the city will “pursue additional mediation with the plaintiffs.” For now, the settlement is not currently scheduled for discussion at a public City Council meeting.
Councilor Kanal told the Mercury he “still believes this settlement isn’t dead,” and is supportive of further mediation in the case. But he maintains that “there needs to be a conversation both around the process—how tentative agreements on policy are made—and the specific items in the settlement.”
Kocher said he understands City Council members want to be in charge of policy decisions, but he doesn’t consider compliance with the Bike Bill a matter of political debate. He compared the issue to the Americans with Disabilities Act (ADA), which requires curb ramps be built alongside sidewalks. In 2018, Portland settled a lawsuit filed by wheelchair users alleging the city lacked ADA-complaint curb ramps. In Kocher’s view, the pending Bike Bill settlement is no different than the $113 million settlement reached to meet the ADA’s legal requirements.
“A legal settlement that addresses the state law obligations should not be derailed by internal politicking within Council,” Kocher said. “Certainly, if people have ideas for how to make dollars go the farthest or to get the greatest benefit for Portland, we’d love to hear that. But, as a matter of governance, the City Council needs to take the advice of their attorney at a certain point and get the job done.”
