MINUTES OF THE METRO COUNCIL GROWTH MANAGEMENT COMMITTEE

Tuesday, January 18, 2000

Council Chamber

Members Present:  Rod Park (Chair), Ed Washington (Vice Chair), Rod Monroe

Members Absent:    None

Also Present:    David Bragdon, Jon Kvistad, Bill Atherton

Chair Park called the meeting to order at 3:32 P.M.

1.  Consideration of the Minutes of the December 7, and December 9, 1999, Growth Management Committees Meetings

The minutes of the December 7, and December 9, 1999, Growth Management Committee meetings were accepted into the record without objection.

2.  Schedule of Growth Management Issues

Elaine Wilkerson, Director of Growth Management Services, reviewed the draft Growth Management timeline, a copy of which is included in the meeting record. She explained that all the items below the top line (items 1.1-3.0) represented work that needs to be completed by June, so that the Council can move forward with item 1.0 Urban Growth Boundary (UGB) Amendments.

Chair Park noted that in April, the Metro Policy Advisory Committee (MPAC) will give its recommendation on the Goal 5 Riparian Functional Plan language. In June, the Metro Council will make its decision about Goal 5, riparian areas, and Goal 14, the alternatives analysis. He noted that item 3.0, Sub-regional Need UGBA, would occur if someone made the request. He asked Ms. Wilkerson if anyone had made a sub-regional needs request.

Ms. Wilkerson said there was not an active consideration, although she thought there was an annexation consideration on urban reserve (UR) 49, and an annexation application on UR 51-55. She said a portion of UR 45 came in, although she was not sure of its status.

Councilor Washington noted that several public hearings were planned. He asked if additional schedules would be developed that would show dates and times for the public hearings.

Chair Park said the concept is to develop more detailed agendas based off of the general timeline.

Councilor Monroe asked whether the Council would be able to act on a UGB amendment prior to Fall 2000, if an area was ready and met all the necessary standards.

Chair Park said yes, that was the purpose of item 3.0, Sub-regional Need Urban Growth Boundary Amendment (UGBA).

Without objection, the committee moved the Draft Growth Management Timeline to the full Council for consideration.

4.  Goal 5 Discussion Draft

Mark Turpel, Manager, Growth Management Services, gave a brief overview of the Streamside CPR – Program. Speaking notes for the presentation include information presented by Mr. Turpel and are included in the meeting record.

Councilor Monroe noted that the City of Portland has plans for extensive redevelopment along the west end of the Ross Island Bridge. He asked if the draft Goal 5 regulations would allow enough flexibility for Portland's plans to go forward.

Mr. Turpel said there was no clear answer yet, although the intent of the Local Riparian Districts is to allow for more flexibility on a local level, and balance environmental, economic, social, and energy considerations.

Councilor Monroe said in the 50 years he has watched development along the Willamette River, he has seen the usage shift from heavy industrial, resulting in significant pollution, to more residential uses. He said he would hate the Goal 5 regulations to be so restrictive that they hinder the ongoing redevelopment. He noted Mr. Turpel's comment on disturbance of land within the 200 foot regulated area, and asked if Mr. Turpel was referring to uses such as bike paths and boat ramps.

Mr. Turpel said yes, the term "disturbed area" meant anything that impacted the habitat in the resource area. He noted that they were working to balance the protection of riparian areas with the public's desire to access the water.

Councilor Monroe said he supported public access to water because it strengthened the overall ambiance of the community and the ability to enjoy the beauty of a city on a river.

Presiding Officer Bragdon said in his opinion, the greatest ecological danger of the Goal 5 regulations was not that they would prevent redevelopment, but whether they would prevent restoration. He said there were real opportunities to provide both an ecological and an economic benefit, such as the restoration of brownfields. He said the argument for riparian zone management needed to be based on environmental outcomes. He asked staff if there were measures in mind that would accomplish that?

Ms. Wilkerson said the goal was not to deter redevelopment by having such high costs for restoration that it would make the redevelopment uneconomical. The Goal 5 Technical Advisory Committee was working to develop performance standards that would make Metro's expectations clear and encourage good redevelopment.

Chair Park suggested that Councilors Washington and Monroe may wish to meet with Mr. Turpel for a detailed explanation of the draft Goal 5 regulations. He said one issue will be how to address the question of fairness. In some ways, the regulations favored those who damaged the riparian zones by allowing them to make up for it at the expense of those who have not caused any damage.

Mr. Morrissey noted that the agenda packet also included a calendar for open houses in February and a sheet listing presentations to local jurisdictions.

5.  Draft 4(d) Rule

David Moskowitz, Metro Salmon Recovery Coordinator, said the National Marine Fisheries Service (NMFS) recently published 3 proposed 4(d) rules: steelhead, salmon, and Native American tribal issues. The public comment period on the draft rules ends on March 6, 2000. He noted that comments on either the steelhead or the salmon proposed 4(d) rules will be taken as comments on both. He said a public hearing was held at Metro on January 10, 2000, and was well attended. He noted that the end of the public comment period did not preclude continued discussions with NMFS. Metro staff was currently reviewing the draft 4(d) rules, and he hoped to receive draft comments in a week. He said any comments from the Executive Officer and the Council should be coordinated so that Metro sends one unified message. He said comments should be finished as soon as possible so that they can be shared with Metro's local partners.

Chair Park asked how the Executive Officer's message would be different from the Council's message, since the Council sets policy direction?

Mr. Moskowitz said he did not anticipate a difference in the message, he merely wanted to note that any message should be unified.

Chair Park asked Ken Helm, Assistant Counsel, to what extent Metro's Goal 5 work encompassed the requirements of the Endangered Species Act (ESA). He noted that some jurisdictions have considered approaching NMFS separately with their own ordinances.

Mr. Helm noted that Chair Park's questions were partially answered in the January 12, 2000, memo he wrote to Dan Cooper, Legal Counsel, on the proposed 4(d) rule coverage. A copy of the memo is included in the meeting record and contains information presented by Mr. Helm.

Chair Park said he personally supported the right of cities to request individual approval from NMFS. He asked Mr. Helm about the extent to which Metro's Goal 5 work satisfies the proposed 4(d) rules.

Mr. Helm said he was not sure whether Metro's Goal 5 work fit under the umbrella of the 4(d) rule or vise versa. He thought those answers will probably become clear in time. He said one important point to remember, however, is that Metro's Goal 5 work was in response to work that the Metro Council established in 1996 under the original Functional Plan. Goal 5, which is part of Title 3 of the Functional Plan, is a multi-species approach, and in that respect, Metro's 4(d) efforts did fit under its Goal 5 work. That said, he added, in order for the region to continue the ability to develop in an environmentally-sensitive way, and continue developing, Metro needed to pursue the 4(d) criteria. The proposed 4(d) rule set forth 12 criteria that the Functional Plan or local programs must meet in order for NMFS to determine that those programs are "adequately protective" of listed species. He briefly reviewed the criteria relevant to Metro's Goal 5 work. He said he would publish a memo tomorrow identifying the relevant criteria and reviewing the preamble of the proposed 4(d) rule. He said his initial triage analysis is that Title 3 and the proposed Goal 5 program go a long way to satisfying the 4(d) criteria, although further analysis is needed. He said in two areas, however, there is significant work to be done: 1) a stormwater program, and 2) protecting channel migration zones and streambank hardening. He said the next important step is for Metro to determine how it wants to comment on the proposed 4(d) rules.

Mr. Moskowitz said the 4(d) rules must be signed by mid-June, and will become effective some time after that. Once the rule is in effect, urban development is considered a "take" under the act. The rule also sets forth that if the region conducts urban development in compliance with NMFS's regulations, then the "take" prohibition is limited. He said the Council's goal is to act on the Goal 5 regulations by June. Once the Goal 5 regulations are adopted by Metro, local jurisdictions will have a grace period to amend their comprehensive plans. He predicted that there will be period of time in which the 4(d) rule will not provide any protection for urban development.

Chair Park said he hoped that would be addressed with NMFS, because if the region is acting in good faith and moving in the right direction, there should be some consideration. Otherwise, NMFS runs the risk ruining the good will of the people who actually have to do the work.

6.  Ordinance No. 00-839, For the Purpose of Amending Metro Ordinance No. 99-730C, Title 3 and Title 8 of the Urban Growth Management Functional Plan and the Regional Framework Plan

Larry Shaw, Senior Assistant Counsel, reviewed Ordinance No. 00-839. A staff report to the ordinance includes information presented by Mr. Shaw and is included in the meeting record.

Chair Park said the ordinance had been referred directly to the full Council for action on January 27, 2000. At Presiding Officer Bragdon's request, Chair Park will carry Ordinance No. 00-839 to the full Metro Council.

3.  Urban Reserve Rule

3-A.  Executive Session, Held pursuant to ORS 192.660(1)(h), to consult with legal counsel concerning the legal rights and duties of a public body with regard to current litigation or litigation likely to be filed

Chair Park opened an Executive Session pursuant to ORS 192.660(1)(h) at 4:56 P.M.

Present:  Chair Park; Councilor Washington; Councilor Monroe; Councilor Atherton; Presiding Officer Bragdon; Mr. Cooper; Mr. Shaw; Mr. Helm; Mr. Morrissey; Ms. Wilkerson; Scott Weddle, Planning Technician; Joseph Gibbons, Senior Auditor; Beth Anne Steele, Council Public Outreach Coordinator; Suzanne Myers, Council Assistant; Greg Nokes, Oregonian newspaper reporter.

Chair Park closed the Executive Session at 5:05 P.M.

3.  Urban Reserve Rule (Continued)

Mr. Shaw reviewed a memo from Richard Benner, Director of the Department of Land Conservation and Development (DLCD), dated January 11, 2000. The memo includes information presented by Mr. Shaw and is included in the meeting record. Mr. Shaw said in some cases, the proposed rule goes beyond clarification, as detailed in his memo to the Metro Council on January 11, 2000, regarding LCDC's Urban Reserve/Rural Residential Rules, a copy of which is included in the meeting record. He asked for committee direction to allow staff to testify at the Land Conservation and Development Commission (LCDC) hearing on January 27, 2000. He said with the Court of Appeals decision on urban reserves, Metro must start over, and it would be preferable to create urban reserves under the new rule than under the old rule.

Chair Park asked if understood correctly, that if Metro decides to designate urban reserves a second time, the technical cleanups which Mr. Shaw recommends in his memo will make the urban reserve rule a usable tool for Metro. Chair Park said his main concern is making sure that the urban reserve rule will be usable in the future, should Metro decide to use it.

Mr. Cooper said that was the purpose of legal counsel's technical comments. He said his goal is to make sure that the committee understands what the new rule says in terms of exclusive farm use (EFU) land versus exception land, that it will make urban reserve planning by Metro voluntary, not mandatory. If after understanding what the new rule says, the committee wants legal counsel to write testimony in support of the new rule, then he would like to add some technical comments about the rule to make sure that it is a workable, efficient rule without any unintended consequences.

Councilor Atherton asked Ms. Wilkerson about DCLD's proposal to change the minimum lot size requirement from 20 acres to 10 acres for exception lands within 2 miles of the UGB. He noted that in the past, counties had accepted the 20 acre minimum. He asked if it would it be valuable for the Council to send a letter to LCDC about the county practice of clustering, which in effect allows a subdivision of fairly large parcels on the fringe of the UGB.

Ms. Wilkerson said she would prefer that Metro discourage the partitioning of land that will potentially be urbanized in the future, because generally, partitioning creates nothing but difficulty. When Metro introduced the 20 acre minimum in Title 11 of the Functional Plan, she said, it was done with the recognition that it would increase the potential for productivity. She said she was not familiar with clustering, and did not have a comment.

Mike Burton, Executive Officer, said he was on record from the start that Metro should not have been involved in the urban reserve process. Metro is responsible for the urban area itself, and for creating a 20-year plan for growth that makes sense. He was told that the purpose of urban reserves was to assure people with farmland that their land would be protected for 50 years, and to assure that no activity would occur inside urban reserves that would inhibit future urbanization of that land. In his view, it is the state’s responsibility to protect farmland outside of urban areas. Metro has enough to do just managing the UGB and land inside of it. He agreed that should Council decide to take a position on the new urban reserve rule, that it should try to emphasize that 1) this should not just be prospective, but hopefully apply to Metro's current decision, and 2) DLCD's rule must preserve the region's natural resources on the edge of the UGB, which is one of Metro's chartered responsibilities.

The committee directed legal counsel to testify before LCDC, as outlined in Mr. Shaw's memo.

Councilor Atherton said in his opinion, the 20 acre minimum lot size is too small, and he suggested sending a letter from Metro to LCDC.

Mr. Cooper noted that the change in minimum lot size in rural residential areas is not part of the proposed urban reserve rule itself; it is a separate rule. He said that at the Metro Council's direction, legal counsel could comment on the rural residential minimum lot size, as recommended by Councilor Atherton, and ask LCDC to include the largest possible minimum lot size within the two mile protection zone.

Chair Park said there was little exception land within the two mile protection zone that could be divided into lots smaller than 20 acres, so the proposed LCDC change would have little effect on the Metro region. He said it would be acceptable for a Councilor to comment individually on the rural residential issue, as it is outside of the Metro Council's purview.

Councilor Washington asked Mr. Cooper if there was a deadline to respond to LCDC, as per Councilor Atherton's proposal.

Mr. Cooper said the commission hearing and possible adoption will be a week from Thursday, on January 27, 2000. As the Council meeting on January 20, 2000, had been canceled, this was the last formal meeting in which legal counsel could be given direction. He added, however, that it was possible for the Council to give informal direction to staff outside of a formal meeting. In addition, he said, if LCDC decides to delay action on the urban reserve rule until next month, it is likely that action on the rural residential minimum lot size will also be delayed, which would allow the Council more time to deliberate in a public meeting.

Councilor Washington said he preferred to discuss Councilor Atherton's proposal as a full Council, and he noted that Councilor Susan McLain was currently out of town.

Presiding Officer Bragdon said he was comfortable with the committee's direction on the urban reserve rule. He asked Mr. Cooper for MPAC's position on the issue.

Mr. Cooper said MPAC was unanimous in requesting that LCDC delay its decision on the urban reserve rule by a month.

7.  Councilor Communications

There being no further business before the committee, Chair Park adjourned the meeting at 5:32 P.M.

Respectfully submitted,

Suzanne Myers

Council Assistant

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ATTACHMENTS TO THE PUBLIC RECORD FOR THE MEETING OF JANUARY 18, 2000

The following have been included as part of the official public record: