Giesen Perspective

Editor's note: This is the fourth installment of the five part series. To view the first, second, and third installments please click on the following link:

The Virginia Transportation Reform Act of 2007 - HB 3202

A Collaborative Analysis—Installment # 4—Reform

Portions of the Transportation Plan—VDOT And Land Use

DATE: Friday, March 23, 2007

THE REFORMS FOR VDOT

HB 3202 creates new legislation in a number of areas. As discussed in the first three installments of this analysis, the bulk of the bill deals with funding the state’s transportation systems. Other sections of HB 3202 address certain reforms in the Virginia Department of Transportation (VDOT). Two interesting points concerning this part of the bill; first, there are those who have questioned putting these reforms in the bill under the tradition of “one subject per bill;” and, secondly, the minor attention paid by the media to these portions of the bill. These changes in the Code do deserve the attention of anyone who wants to understand the changes visualized by the authors of The Virginia Transportation Reform Act of 2007.

HB 3202 would impose on VDOT more extensive involvement of legislators in the operation of the agency. Presently the Governor appoints all fourteen citizen members of the Commonwealth Transportation Board (CTB). In addition to these members, there are three administrative branch executives who serve on the CTB. The Commonwealth Transportation Commissioner, the Director of the Department of Rail and Public Transportation and the Secretary of Transportation are all members with full voting privileges. These three executive branch individuals are, of course, appointed to their positions by the Governor. Furthermore, these Governor appointments are all subject to the confirmation of the General Assembly.

In a report to the General Assembly in 2002 entitled Equity and Efficiency of Highway Construction and Transit Funding, the Joint Legislative Audit and Review Commission (JLARC) recommended, “The General Assembly may wish to amend Section 33.1-1 of the Code of Virginia to provide for General Assembly appointment of the five at-large Commonwealth Transportation Board members.” HB 3202 would implement this recommendation.

The legislation provides that these at-large members shall continue to be from the Commonwealth, at large, with at least two being from standard metropolitan statistical areas (urban at-large members) and at least two being from “outside standard metropolitan statistical areas and be designated as rural at-large members.” The legislature will appoint these five at-large members by “a majority vote of the members present and voting in both houses of the GA.” The GA will have complete control of the appointment and retention of these members. Language is in the bill (as it now stands—who knows maybe the Governor will change this with one of his amendments) which states, “Board members elected by the GA shall not be removable by the Governor but may be removed from office only by a majority vote of the members present and voting in both houses of the GA.”

It is interesting to some former members of the legislature that current legislators want to get so directly involved in the operation of an executive agency. There are some leadership and management books which suggest the proper way to run a business (or a state agency) is to hire competent people to manage the agency and capable people to serve on the board to make certain the executives do their job. Legislators in the past have often made recommendations to the sitting Governor to obtain these results. Two particular appointments to the CTB (or its predecessor) come to mind. Present Delegate Steve Landes’ father was an exceptional member of the highway board from the Valley for eight years during the 1970s. More recently, Kenny Kling, a former campaign manager for Delegate Vince Callahan, served NOVA with distinction on the CTB. Both of these appointments came from the executive branch but were recommended by members of the legislative branch. Maybe the executive and legislative branches don’t work together quite as well as they have in the past.

In its response to the recommendation in the JLARC report, VDOT commented, “There is no evidence that CTB members appointed by the Governor and confirmed by the General Assembly, are unresponsive to the General Assembly…A hybrid system of legislative and executive branch appointments would make it more difficult for taxpayers to hold the executive branch accountable for successes and failures by the CTB and VDOT. Finally, the General Assembly would become burdened by highway location decisions, and the resulting controversy and litigation that so often are associated with these decisions.”

If this portion of the legislation remains as it is now written, we will have a hybrid system of appointments, and the legislature will be more involved in the direct management of where and how our highways and roads are managed. The question comes to mind -- would you want to be one of the legislative urban at-large appointees from Hampton Roads and have to be part of the decision as to which tunnel in the area was going to get funded first? Oh well, maybe the Hampton Roads Transportation Authority will take care of that issue.

The Joint Commission on Transportation Accountability

Now let’s discuss one of the more intriguing parts of the bill – the provisions that will create a new commission. If the “liberal Governor” (a designation given to Governor Kaine by a Republican legislator during the 2005 campaign) doesn’t amended the new Chapter 42 of Title 30 consisting of sections 30-278 thru 30-283, then “the ultra conservative Republican legislature” (another epitaph from the 2005 campaigns) will be successful in expanding the legislative bureaucracy by creating The Joint Commission on Transportation Accountability. Now isn’t that a twist of political positions. Of course, as some delegates observed, “This is a way to make sure VDOT is more efficient!” Is government more efficient when you create more commissions?

The new Commission will consist of six delegates and four state senators, and the ex officio non-voting Auditor of Public Accounts. Expenses for these members shouldn’t be too extensive, however, as the legislation will also allow for the appointment of a Director, who may, with the approval of the General Assembly, fix the duties and compensation of “an adequate staff as may be requisite to make the studies and conduct the research and budget analyses required by this chapter.” The Commission can also hire consultants, advisors and other professional personnel as may be required.

The legislation spells out the mission of the Commission. The language in the bill looked familiar. With the help of a computer literate co-worker, we did a Google search of the Code, and sure enough, found Sections 30-56 thru 30-63, which pertain to JLARC. The initial sections were enacted in 1973 when that Assembly created this legislative commission to “1.A. Make performance reviews of operations of state agencies (isn’t VDOT a state agency?) to ascertain that sums appropriated have been, or are being expended for the purposes for which such appropriations were made and to evaluate the effectiveness of programs in accomplishing legislative intent;

B. Study on a continuing basis the operations, practices and duties of state agencies, as they relate to efficiency in the utilization of space, personnel, and facilities;

C. Make such special studies and reports of the operations and functions of state agencies as it deems appropriate and as may be requested by the General Assembly:…” : (Section 30-58)

The new sections added under Chapter 42 state the mission of this new Commission is: “1. To make performance reviews of operations of state agencies with transportation responsibilities to ascertain that sums appropriated have been or are being expended for the purposes for which they were made and to evaluate the effectiveness of programs in accomplishing legislative intent;” and so forth and so on.

It certainly appears to a number of legislative observers (lobbyists) and business people with whom we have talked that a more “efficient” way to accomplish this purpose (to give the legislature more information as to the accountability of VDOT and other transportation agencies) would have been to assign it to JLARC. One would think more staff could be provided to JLARC more inexpensively than by creating another whole commission with an executive staff, consultants, etc. Silly us, this will create ten additional commission positions for legislators. Maybe the authors of this part of HB 3202 aren’t serving on enough commissions!

Will the Governor amend this section? It is doubtful. It will be a legislative commission, not one in the administrative branch. As noted, the legislature already has the authority under the JLARC legislation to do almost exactly what this new commission will do. So, one can speculate that the Governor will concentrate on other parts of HB 3202.

Other Reforms

In testifying before the House Transportation Committee the Secretary of Transportation raised no objections to some of the VDOT reforms which the committee was considering in HB 3202. His reasoning was simple, “In practically all of these cases, VDOT has already implemented these reforms or is in the process of doing so.”

One of the reforms included requires VDOT to reconsider and reassign its classification of highways and roads in Virginia on the basis of their uses. The primary, secondary, and urban classifications under which the department is presently operating have been in place for a number of decades. The Secretary indicated VDOT, under its new leadership, has already started this reclassification process as suggested in the 2002 JLARC study. The legislation under review by the Governor does set a date of January 1, 2009 for the shift of roadways “to more closely match their functional classifications.”

Another “reform” spelled out in the bill is for the Commissioner of VDOT to take the steps necessary to competitively bid or privatize the VDOT functions that could reasonably be provided by the private sector. Again, this is a recommendation made by JLARC in its 2002 report. Governor Warner pushed for this type of “reform” during his administration and the department has continued to make strides in this direction under Governor Kaine.

While those who negotiated HB 3202 didn’t use the tolling of new roads as much as some would have liked, they did provide that if there are substantial improvements made to any toll facility, “such toll improvements shall include the full automation of such toll collection facilities” and the full use of the most up-to-date toll collection technologies. The legislators stressed these toll facilities should be designed to ensure the greatest freedom in the movement of traffic by the construction of full-speed lanes. Secretary of Transportation, Pierce Homer, has assured the assembly on several occasions that VDOT is already studying all of the newest technology for the swift collection of tolls.

With all of these “in the works,” why put them into the Code? That’s a good question. In all probability one of the proponents of HB 3202 would answer, “That’s what this administration is doing. With this language in the Code, the next and the next and the next administrations will have to do the same things. This is, of course, unless future legislatures change the Code!”

There may be some technical changes to these sections of the bill from the Governor but we do not see any substantial changes being made.

LAND USE REFORM

During the transportation debates of 2004, 2005, and 2006, all parties (the delegates, the state senators, the transportation community and the Governor) continually stressed the “disconnect” between land use planning at the local level and the impact zoning decisions had on the transportation infrastructure. VDOT complained because it was required to take into its system “of secondary roads” some 200 miles per year of streets built within new developments.

The framers of HB 3202 attempted to address these concerns in a wholistic manner. Initially the legislation required the department to push the maintenance for all of the secondary roads in counties down to the local level. This so called “devolution of maintenance” was designed to save the state “tons of money” and relieve the maintenance cost drain on the construction funds of VDOT. However, the outcry of “foul” from local officials and many others caused some major rewriting of these provisions in the bill.

In the final conference report, the legislation states that every county with a zoning ordinance that is, “…located within the Northern Virginia, Richmond-Petersburg, or Winchester Metropolitan Statistical Areas; has a population of at least 20,000; and has population growth of 15% or more from… (one census to the next)…shall, and any other county, or any city or town may, amend its comprehensive plan to incorporate one or more proposed urban development areas.”

The idea of the Urban Development Areas is to concentrate commercial and residential densities within these areas, close to transportation facilities and public or community water and sewer systems. This portion of the legislation also states that the comprehensive plans visualized in this part of the Code shall also “…incorporate principles of new urbanism and traditional neighborhood development, which may include but need not be limited to (i) pedestrian-friendly road design, (ii) interconnection of new local streets with existing local streets and roads, (iii) connectivity of road and pedestrian networks, (iv) preservation of natural areas, (v) satisfaction of requirements for stormwater management, (vi) mixed-use neighborhoods, including mixed housing types, (vii) the reduction of front and side yard building setbacks, and (viii) the reduction of subdivision street widths and turning radii at subdivision street intersections.” Gosh, this sounds as if some of our forefathers designed their communities in the right way, with pedestrian friendly roads and parks in the center of the town, etc.

The second part of the land reform package provides for the creation of Urban Transportation Service Districts. The boundaries of such districts shall be agreed upon by the governing body of an urban county and VDOT. Now here’s where the bill was changed drastically during its legislative process. The definition of “urban county” ended up being "...any county with a population greater than 90,000 that did not maintain its roads as of January 1, 2007.” In the earlier versions of the bill the number of counties that would have been covered by this section was much greater. The trade off for these urban counties creating these Urban Transportation Service Districts and thereby acquiring the responsibility for the construction, maintenance and general upkeep of streets and roads, is the authority to enact impact fees in areas outside of urban transportation service districts and to “…receive an amount equal to the per lane mile maintenance payments made to cities and certain towns...for the area within the district for purposes of road maintenance. In addition such locality shall receive an amount equal to the difference between the maintenance payments made to cities and certain towns…and what VDOT would be spending within the service district if not for the creation of such district. Such money may be spent by the locality on any transportation need, including new construction.”

HB 3202 also requires VDOT to enhance the design standards for subdivision streets. Before any subdivision street can be eligible for entry into the state secondary system it would have to meet these new standards. This is one area where localities would like to have some input as to the new standards which VDOT would create for these subdivision streets.

The Governor heard the complaints of local officials in his listening tours. It is very likely he will make “technical amendments” to these sections of the bill.

THE FINAL INSTALLMENT

In installment #5, we will do a brief review of history. This will include some background on how our transportation system got into this situation, and then some insight into how The Plan came to be and how it took some “parliamentary maneuvers” to get it through the legislative process.

Arthur R. Giesen, Jr., fondly known as Pete, served in the Virginia House of Delegates for over 30 years. He represented the citizens of the Central Shenandoah Valley surviving four different district realignments. During his career he represented Augusta, Bath, Highland and part of Rockingham County and the Cities of Staunton and Waynesboro.

Following his career as an elected official, Pete assisted Lt. Governor John H. Hager as his Chief of Staff.

Pete now keeps an eye on Virginia government and assists many clients with his unique perspective on the workings of the Virginia General Assembly and its relationship with the other branches of state government.

THE GIESEN PERSPECTIVE