OCTA Board’s 405 Toll Road Arguments: A Review and Refresher Course

OCTA meeting 9-24

The OCTAmob.

Vern and I were each going to do our separate stories before today’s either climactic or anti-climactic OCTA Board meeting.  His is out; here’s mine, scheduled for 5 a.m.  What I want to offer is a refresher course: a review of the arguments that Orange County Transit Authority Board members made at their last meeting on Oct. 24, with some analysis.

Lay of the Land as of Sept. 24

In September, the 16-member Board was faced with a choice among four options, with 9 votes required to adopt any proposal:

Alternative 3, which would install two toll lanes in each direction onto the 405 and convert the existing HOV lane to a full-access lane at an estimated cost of $1.7 MM;

Alternative 2, which would create two new free lanes in each direction at an estimated cost of $1.4 MM;

Alternative 1, which would create one new free lane in each direction at an estimated cost of $1.3 MM; and

Alternative 0 (as I call it): do nothing for now

The largest faction was those who favored Alt 3, building the toll lanes, with 7 of the 9 necessary votes, .   This included Don Hansen of Huntington Beach, Jerry Amante of Tustin, Miguel Pulido of Santa Ana, and Paul Glaab of Laguna Niguel as hardliners.  Public Member Gregory Winterbottom might be a bit less so, having said essentially that he agreed with Pulido.

Two members were a little softer in their support.  Supervisor Bill Campbell had a complicated plan of starting with Alt. 1 and then shifting to Alt. 3 if the state took action warranting it — a proposal that the OCTA staff’s recommendation has now spiked.  Public Member Michael Hennessey said that he had been sympathetic to Alt. 2, but leaning towards Alt. 3 due to arguments regarding its supposedly greater “throughput” preparing the county better for the time when the lanes would once again fill up with continued growth.

The next largest faction was those who favored Alt 2, the maximum number of free lanes in each direction, with 6 votes.  Of these, Supervisor John Moorlach and Fountain Valley’s Larry Crandall seemed like the hard-liners.  Supervisor Pat Bates favored either Alt 1 or Alt 2, but seemed slightly inclined towards the latter.  On the softer-line side, Supervisor Janet Nguyen seemed to rule out Alt. 3 as well, though not as explicitly as Bates did, favoring Alt. 2 based on efficiency grounds.  Bill Dalton of Garden Grove and Lori Galloway of Anaheim both favored Alt. 2 based on the fact that it was the locally preferred alternative — which is what the OCTA Board is supposed to favor, rather than trying to slam through its own preferred alternative.  Galloway never actually said that she supported Alt. 2, but unless she thinks that something else is the locally preferred alternative, it’s implicit.

Of the remaining trio, Peter Herzog thought that Alt. 1 was best for affirmative reasons, while Supervisor Shawn Nelson thought that it was best by default, after ruling Alt. 3 out definitively and Alt 2 out on financial terms.  Finally, Carolyn Cavecche of Orange seemed the most disposed towards Alt. 0 — or was, at least, unhappy with all available options, but especially Alt. 3.

Before guessing how tomorrow’s vote might go, I think it may be worth reviewing the argument that various of the players made.  If that doesn’t seem interesting to you, skip down to the next section.

The Arguments Made

Debate on Sept. 24 was a pretty high-caliber on all sides.  It’s interesting to see what arguments came out, test their merits, and especially to see how they fared in light of what Vern and I agree was a highly tendentious staff report on the agenda, in which Will Kempton and the OCTA staff essentially say: “my way or no highway.”  Let’s start with proponents, hardliners first.

Proponents of Alt 3:

Don Hansen:

Hansen  began with a Franklin D. Roosevelt quote that, given the stakes and the differences between trying to dig the country out of the Great Depression and building toll roads for well-off drivers, struck me as being in almost spectacularly bad taste.  The quote: “The only limit to our realization of tomorrow will be our doubts of today. Let us move forward with strong and active faith.”  Yes, I can believe that FDR said that — or Stalin, or Pol Pot, or Khomeini.  This boils down to “trust me or you’re a fool,” and Hansen didn’t come close to earning that trust.

Hansen made the “carpool lanes are failing” argument, combined with the “but toll lanes are profitable” argument.  We can debate the former — and leave much of that decision to the state — but you would think that someone familiar with white-elephant pack of the 73, 133, 241, and 261 would be a little bit more cautious.  The great argument for the profitability of toll lanes is the proclaimed success of those along SR-91 — and that’s a great example for showing why the 405 toll lanes will be a disaster.

In making this argument, I have a tremendous advantage over many other people around here: I lived for six years in New York City and I understand the difference between the Riverside Freeway between Anaheim Hills and Corona and the San Diego Freeway between Laguna Hills and Newport Beach.  I can tell you the difference in five words: “YOU STAY THERE ALL DAY.”

Manhattan receives “commuter trains” from three directions, east, west, and north.  That corresponds to: Long Island (Long Island Rairoad), New Jersey (MTA), and Connecticut (Metro North) — the three places where most people commute from off the island to faraway actual houses.  (The fourth place, Staten Island, has its famous ferry, for which the analysis is similar.)  Each of them has fares that I recall being roughly comparable to what we might see on the 91, probably even a little higher.  Each of them has a couple of other things in common with our 91 Freeway:

(1) the alternatives to traveling on it can be awful;

(2) the people who use it tend to be better off — or at least able to treat the cost as replacing higher rent; and

(3) usually, when you travel down them, you stay there all day.  If you drive during the time you’re at work, you’re driving locally.  Maybe, for example, you’re driving back and forth up the 405 — or nearby surface streets.

Put them into one sentence and you have something much like the 91 Toll Roads: an alternative used as a once per day round trip commute, which takes the place of paying higher rent, to which there are no good alternatives.

(By the way, I’ve long suspected that OCTA doesn’t care much at all whether the non-toll 91 lanes suck — and suck they do — because they mostly affect non-OC voters from Riverside County and the more they suck the more people buy transponders and pay tolls.)

Now compare that to the 405.

  • Are there alternatives to it?  Plenty — although they tend to screw up neighborhood traffic!
  • Are those who use it disproportionately better off?  Some are, but overall not really!
  • Do people who use it make up for the cost of tolls by paying lower rent where they do live?  Not likely!
  • Do people use the 405 primarily for one round trip commute to work per day?  Mostly not!

The 91 is to the 405 as the Long Island Railroad is to Park Avenue or Broadway.  If a Manhattan politician ever talked about turning Broadway into a toll lane, he or she  would be eaten by the populace and no jury would convict them.

Moral: don’t tell me, Mayor Hansen, how the 91 Toll Lanes prove that the 405 Toll Lanes will succeed.  It’s ignorant.

Jerry Amante:

Amante argued that the 405 was a political canyon similar to the geological Santa Ana Canyon, I believe  the point being that that you can’t expand the available traffic space for either.  He dissed HOV lanes.  He longed for the ability to have put toll lanes on I-5 and argues that without toll lanes on the 91 traffic would be worse on both I-5 and I-405, I suppose because drivers from Riverside County would have figured out a way to use catapults to get their cars over the Cleveland National Forest and the Foothills.  He said that tolls improve the quality of the commute for all — which I suspect is an argument like a project that takes $1 away from a million poor people and leads to a $1.1 million dollar gain to a single rich guy is better for society overall, because do the math!

I came away from his presentation thinking three things: (1) Jerry Amante really hates HOV lanes, (2) Jerry Amante really loves toll lanes, and (3) Jerry Amante is so biased in favor of toll lanes that I would not trust a single statistic he provided until it was reviewed by someone who hates his guts.

Paul Glaab:

While Glaab exhibited his support for Alt. 3 in various asides and treatment of others, his speech was relatively brief: he says that people grudgingly support transponders, so Alt. 3 will work (see the above discussion of Manhattan regarding that) and that the OCTA didn’t have any way to get the extra $100 million for Alt 2 anyway.  (See Vern’s article, linked above, regarding that.)

Miguel Pulido:

The last pro-toll hardliner was Democratic Mayor Miguel Pulido.  Much of Pulido’s argumentation was that we had no way to pay for Alt. 2 and that Lucy Dunn and AAA and the staff and others preferred Alt. 3, but he also had some arguments that I haven’t touched upon above.  The first is that “locally preferred alternative” should not refer to the cities closest to (and most affected by surface traffic due to limitations of) the 405, but rather to the entire region.  This puts him on a direct collision course with Nguyen, Dalton, and Galloway — and probably others as well.  Second and more interesting was the capacity argument.  (This argument also apparently convinced both Public Members Hennessey and Winterbottom, whom I won’t discuss separately.)

Pulido said that Alt. 1 would not provide enough capacity by 2020 and that Alt. 2 also wouldn’t provide enough before long.  (One could make an argument about the advisability of untrammeled development, on that basis, but in and around OC it would probably elicit either a blank stare or laughter.)  Only Alt. 3 would provide the maximum “throughput” — apparently because the toll lanes would rarely get so filled to keep the people who could afford them from maintaining a cruising speed.  (How do we know?  Why, from the commuter train-like 91, of course — which is, of course, a terrible model for the major central commercial artery that is the 405.

In other words, I flat out don’t believe the figures about throughput, and I think that anyone who puts as much faith in them as a determining factor for their vote is making a huge mistake.  The throughput projections justifying the toll lanes will probably be highly overoptimistic.  We only get to choose one of the future realities for the 405; we’ll never be able to do a side by side comparison of the predictions.

Or could we?  Actually, we could come close.

If Alt. 3 passes, I’d like to see it happen with a rider: if the throughput projections aren’t met by the time the bonds are paid off, then once the bonds are paid for (or even earlier, if we can save up tolls for that) OCTA should be required to shut down the toll booths for two years.  Let’s measure throughput before and after such a manipulation — and if throughput really is better with toll lanes so that traffic is improved for all, then the toll lanes can be reinstated.

I don’t like that proposal — but it’s better than trusting the projections of a highly interested OCTA staff.

I also won’t discuss Bill Campbell’s interesting idea, because the OCTA staff scuttled it.  Part of the report is apparently written specifically to bring Bill Campbell to heel.  (I wonder how he feels about that?)  Let’s move to the arguments for Alt. 2.

Proponents of Alt. 2:

John Moorlach:

Moorlach noted that OCTA has been pretty successful as a self-help county in dealing with most of its freeway system — with the exception of the 405.   The 91 Toll Lanes, he reminds us, were built on open land at a time when no other funding was available — in other words, they built toll lanes out of nothing.  That’s a stark difference from the 405, where the Toll Lanes would not be in an out of the way place but in the commercial center of the County — and where they would supplant the substantial improvements that people had expected to get when they passed Measure M2.  I’m not the anti-tax warrior that Moorlach is; I’m a pro-fairness warrior.  But when OCTA hitchhikes on a publicly funded project that ends up giving it its own little private goldmine to control, without a public vote — well, then his interests and mine decisively overlap.

Pat Bates: 

Bates said that she’d also be happy with Alt. 1 as well as Alt 2, but she extended some of the political analysis from Moorlach.  She separated the issue of how to finance the improvements from the issue of mobility.  She noted that Orange County didn’t do in 2006 what San Diego County did in 2008 — that is, include the possibility of managed lanes in the plans informing the vote of the electorate.  That alone was enough to lead her to reject the Financing Plan of Alt 3.

Of the others, Larry Crandall was the first to raise the “design and build” to lower construction costs and bring Alt. 2 into fiscal feasability.  For Janet Nguyen, Lorri Galloway, and Bill Dalton, the overriding consideration was simply deference to the locally preferred alternative.  All but Galloway live in that local region, but Galloway (who did not commit to any of the measures) added another useful insight.  The 91 Toll Lanes are within the city limits of Anaheim — though they’re a long way away from the Magic Kingdom or Little Arabia.  Anaheim had received deference back when they were built and she would return that deference now.  But she also noted one huge difference between the 91 and the 405 that I haven’t yet mentioned, one so obvious that it was easy to overlook: Pretty much no one objected to the 91 Toll Lanes!  That’s a stark difference between that situation and this one — and a strong reason that, even if one is not legally required, it should go to a vote.

Proponents of Alt. 1 and 0 (or something):

Peter Herzog:

I have more respect for Herzog’s position than my friend Vern seems to have had, though he’s come around a little.  Herzog’s position is pretty simple: move the project into gear, start rebuilding those bridges, and then put off the final decision about what to build until later, when new information might make it more clear.  This means, for now, approving Alt 1.  It may later become Alt. 2 or Alt. 3 — or it may stay the same.  The bridges and the right-of-way just need to be big enough to encompass the extra two lanes — and they will be.  Herzog also noted that a Regional Expressway System has not yet been developed — and that approving a proposal where nobody knows how the future cash stream from toll lanes will be spent is, I’ll paraphrase here, seriously dumb.

Shawn Nelson:  

Nelson is more of an ideologue than Herzog — and he makes a very different argument for Alt. 1.  Essentially, it’s the only one that isn’t barred.  He dismisses Alt. 2 on the grounds that the County doesn’t have the money for it.  (Vern and others have supposedly made the case to him that this ain’t true, which is why he may still be a vote for Alt. 2.)  He shares the concerns about Alt. 3 that were expressed by Moorlach, Herzog and Cavecche — such as where the income stream will go — and he also thinks that we can decide the ultimate fate of the 405 in later years.  His position is that voters only signed up for Alt. 1 — and that that’s all they should get for now.

(By the way, I think it was Nelson who brought up a good point — if this is dependent on total sales tax revenues, which accrue if unspent, can’t we wait a half-year or however long it will take until we raise the other $100 million, or 50 or 30 or whatever, that we need?)

Carolyn Cavecche:

I’ve left Cavecche’s position for last both because she’s in her own idiosyncratic group and because it’s the most interesting.  She disagrees with her neighbor Amante that this project is all-or-nothing, do-or-die, one-time-only: we’ll have other chances to build.  Her objection to “Design-Build” is that she thinks it seems too hard to pass — but she may be mollified by Moorlach’s announcement that he’s personally carry the bill through Sacramento next year.  Her problems with Alt. 1 and Alt 2 are that she is influenced by the capacity objections and wants to know how long it is before they are gridlocked.  She thinks that people should vote on it.

So that’s the analysis of where people stood.  Now I’m going to suggest that you ignore most of it.

Where There’s Been a Will, Has There Been a Way?

All of that was four weeks ago.  A lot can happen — and probably has happened — within the past four weeks.  And most of the pressure has probably come from the institutional actors who want toll lanes.  There has probably been lobbying; there have possibly been promises. It wouldn’t surprise me to see ten or eleven votes in the bag right now for Alt 3.  Will Kempton and his staff really really want this.  And, if they don’t get it now, they at least want Alt-2 dead so that they can get it later.

You can tell how much they want it by reading the legal memo provided to the council by OCTA’s General Counsel, who works with Kempton.  It’s a real piece of work.  Start with your highest expectations from four weeks ago for how much a legal report could favor Alt. 3 (and only Alt. 3), bump it up 50%, and you’re in the ballpark of this report.  It seems highly dubious in places, though I’d need more time to analyze it than I’ve had, but one thing is clear: it is relentless.  It is as much a piece of advocacy as any legal brief.

It does not, in other words, give the appearance of a dispassionate and objective work.  You could tune it down an octave and it would still be tendentious.  The Board cannot, or should not, blind its eyes to the neatness of the package wrapping up Alt. 3 as the only conceivable choice.  That the report now argues, this late in the game, that Alt. 2 is actually legally impermissible — suggesting that OCTA deserves a refund on its legal fees for this not having been caught sooner — just underlines how much this report is designed to drive home a single conclusion.

This happens — staff grab control of a matter from the elected board and try to ram their preferred recommendation down their throats.  Any member of a voting body has to be aware of that possibility.  I can’t be certain, but if I were on the Board, I would be highly suspicious that it had happened here.

In other words, the OCTA Board should approach the staff report, legal memorandum included, with great caution and suspicion.  IT SHOULD PRESUME  THAT THE OCTA STAFF PULLED OUT ALL OF THE STOPS, WEIGHTED THE DICE, AND PUT THEIR THUMBS ON THE SCALE, IN FAVOR OF ALT. 3.

The Board cannot trust any projection sought out by the OCTA staff, especially those regarding cost, capacity, and throughput.  The OCTA Staff has all but written out plainly that it was going to find any way it could to advocate for Alternative 3 — and that means that before Alt. 3 can be selected, those estimates and projections should be evaluated by someone NOT chosen by Will Kempton and his office.

The Board can’t let themselves be pushed into approving Alt-3 — and let itself be sucked into years of litigation over it.  Like the 405 itself — there’s a lot riding on this.

About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)