MINUTES OF THE METRO COUNCIL GROWTH MANAGEMENT COMMITTEE

Tuesday, February 22, 2000

Council Chamber

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

Members Absent:    None

Also Present:    David Bragdon, Susan McLain

Chair Park called the meeting to order at 3:34 P.M.

2.  Growth Management Work Plan/Timeline Update

Elaine Wilkerson, Director, Growth Management Services, gave an update on the Growth Management Work Plan/Timeline. A memo from Ms. Wilkerson to Chair Park includes information presented by Ms. Wilkerson and is included in the meeting record.

3.  Staff Report for the Purpose of Approving a Goal 2 and Goal 14 Alternative Analysis Work Plan for Future Amendments to the Urban Growth Boundary

Mary Weber, Manager, Community Development, reviewed the staff report, a copy of which is included in the meeting record. Ms. Weber noted that the staff report stated that the Growth Management Services department had $63,000 in its contingency fund. This was incorrect, but due to the current hiring freeze, the department had other monies in its budget to pay for the professional service contract.

Councilor Monroe commented that, looking at the map of the study areas, it was clear that this decision would make it harder to achieve a jobs/housing balance because most of the exception lands were to the south and east of the region, while the most rapid growth was occurring to the west.

Ms. Weber said there was an opportunity in Factor 2 of Goal 14 for local governments to bring into play its own policies on where to direct growth. In the first phase, staff was simply looking at the universe of exception lands. Once they had this base information, the Council could then look at its own policies.

Chair Park asked if the study area in Stafford included the land still under appeal?

Ms. Weber said she did not know, but she would find out.

Ms. Wilkerson said the urban growth boundary (UGB) amendment areas were shown on the map as inside the UGB, and staff measured a mile from that point.

Chair Park asked if the 5,000 acres of Exclusive Farm Use (EFU) land in those areas were completely surrounded? Ms. Wilkerson and Ms. Weber said yes.

Chair Park asked if staff felt it could achieve the June deadline.

Ms. Weber said yes, although they needed to move swiftly.

Ms. Wilkerson clarified that June was the deadline for the completion of all the work. The consultant’s work on the public facility costs and productivity analysis would be done by the end of April. In May and June, staff planned to work on Goal 2, the alternatives analysis, with a deadline of June 15. Following this timeline, staff would be able to determine the final areas for notice by the end of June.

Councilor Monroe asked if legal counsel knew when the court decisions would be made on the appeals of the UGB expansions in North Stafford and Bethany?

Mr. Shaw said today legal counsel received an order from the Land Use Board of Appeals (LUBA) setting the briefing schedule for the Stafford case. He thought the petitioners' briefs were due March 10; Metro's and the respondents' briefs would be due 21 days after that deadline. He said a LUBA decision may occur in the fall, or later.

Councilor Monroe said he asked because if those decisions were reversed, it would affect the amount of land the Council needed to bring into the UGB to meet its obligations by October 31, 2000.

Mr. Shaw said Councilor Monroe's statement would be true if Metro was optimistic enough to think that a) LUBA would make a final decision by October, and b) that no party would take that decision to the Court of Appeals. Both assumptions were rather optimistic, therefore he thought it unlikely that the Council would have an October problem.

Chair Park said he had been discussing with Dan Cooper, General Counsel, how Metro would keep the record open to the end of the calendar year, so that in case that did occur, the Council could come back on one of the pieces and meet its obligations.

By consensus, the committee directed staff to move ahead with the contract.

1.  Consideration of the Minutes of the February 8, 2000, Growth Management Committee Meeting

3.  Staff Report for the Purpose of Approving a Goal 2 and Goal 14 Alternative Analysis Work Plan for Future Amendments to the Urban Growth Boundary (continued)

Chair Park opened a public hearing on item 3.

William Cox, 0244 SW California Street, Portland, spoke about the upcoming study to determine the most reasonable pieces of exception land to add to the UGB. He reminded the committee that it needed to also look at the land necessary to serve the exception lands. Resource lands needed for services, such as sewer lines, were treated differently than EFU lands. He asked the committee to expand the study area to include any resource lands necessary to service exception lands, so that the study results would not be skewed.

Chair Park asked staff for clarification on whether they were only studying EFU lands that were completely surrounded by exception lands.

Ms. Wilkerson said yes, that was how staff had proceeded. She said she was not sure of the lands to which Mr. Cox referred.

Mr. Shaw said Mr. Cox raised an issue that would only occur, usually, on resource lands that were also completely surrounded. There were two categories, but the first category of "completely surrounded" addressed most of the circumstances. However, around the whole perimeter, there were some exception areas that did not quite touch the UGB, and Mr. Cox was referring to the land between the UGB and the not-quite-touching exception land. As a practical matter, any study of the serviceability of exception lands that did not touch the UGB would have to study the access of urban services. As that was done, any land that fit in this category would be identified. He said it should be very limited circumstances, other than the lands that were completely surrounded.

Councilor Washington asked Mr. Cox if was speaking in general on the topic, or if he had a particular area in mind. He asked if it would be appropriate for Mr. Cox to point out the area on a map.

Chair Park said he did not want any specifics at this point.

Mr. Cox said there was a situation in which the UGB ran towards a major intersection. There was exception land, EFU land, then exception land again. Because of the topography, however, in order to service the southerly piece of exception land, it would be necessary to also take in a triangular piece of EFU land that was not completely surrounded. He said he did not want staff to overlook that small area because it was very important information. He said he thought that Mr. Shaw had answered his question.

Ms. Wilkerson clarified that although staff had looked at all the exception lands within a mile of the existing UGB, they had not included for study lands that were isolated from the UGB by resource lands. She said the distinction was described in full in the report.

Councilor Monroe said Mr. Cox made an excellent, valid point. He said staff should include in its study how much EFU land must be accessed in order to serve the types of areas described by Mr. Cox. The staff report needed to state whether any areas of exception land could not be served without crossing EFU land.

Chair Park closed the public hearing.

4.  Goal 5 Preliminary Policy Issues Identification

Michael Morrissey, Senior Council Analyst, directed the committee's attention to the memo from Ms. Wilkerson to Executive Officer Burton regarding Possible Streamside CPR Issues (Goal 5 Riparian), a copy of which is included in the meeting record. He said it would be helpful for staff to receive committee direction, and he added that there would be a more comprehensive set of policy items for discussion at the March 7, committee meeting. He noted that some of the items in the memo overlapped with agenda item 6, the Metro response to the National Marine Fisheries Service (NMFS) Draft 4(d) Rule.

Mr. Turpel reviewed the memo and explained the issue of coordination with federal requirements. He asked if staff should be look at broad stormwater performance standards as an interim measure.

Councilor Washington said in his opinion, Metro could not overlook the issue of stormwater.

Councilor McLain agreed, and added that it was important to support the work in this year's budget. She noted that years ago, the United Sewerage Agency (USA) in Washington County implemented the types of performance standards Metro was now considering as a response to the NMFS 4(d) rule. She recommended that Metro use USA as a model, and ask NMFS for its response. She said in her opinion, staff was on the right track by looking at interim measures and by gathering Metro's partners to address stormwater.

Presiding Officer Bragdon said while stormwater was listed as one of the 12 items in NMFS Draft 4(d) Rule, it had not been included in recent Metro presentations to local jurisdictions. He said if the Council chose to incorporate stormwater, which he felt it logically should, it needed to inform its local partners and incorporate their work by reference.

The committee directed staff to look at broad stormwater performance standards as an interim measure.

Mr. Turpel reviewed the significance issue, as outlined in Ms. Wilkerson's memo.

Councilor Monroe said it was critical that Metro develop a code which the federal government would accept. That would give Metro's regional partners the opportunity to adopt Metro's code and meet the requirements of the 4(d) rule.

Chair Park asked if Mr. Turpel was relying on the Water Resources Department's map to determine the difference between intermittent and perennial streams, because in some areas it affected the determination of water rights. Secondly, he noted the varying buffer widths mandated by Title 3, and said he would like staff to look at Title 3 to see if many of Goal 5 requirements could be addressed in that fashion. He was concerned about the line between water quality issues and habitat issues remain distinct in order to assist legal counsel, should they have to defend the regulations.

Councilor McLain said that while regulations would be tailored to local geographic conditions, there needed to be a clear standard.

The committee directed staff to continue with the proposed approach on the significance issue.

Mr. Turpel reviewed the program issues, as outlined in Ms. Wilkerson's memo.

Chair Park commented on the issue of how riparian district plans would be implemented, and the concern that the potential number of districts could overwhelm the peer review process. He asked if it was possible to develop a system that would be required.

Mr. Turpel said yes, staff proposed that until completion of a riparian district plan, the regional safe harbor requirements (i.e. 200 foot setbacks) would remain in place, and that a scientific peer review panel would review any riparian district plan. He said the details of the proposal had not yet been determined.

Chair Park said he was concerned about the proposal that a minimum setback, substantially less than 200 feet, should be considered in redevelopment sites. He said it was an question of fairness: if Metro were to state that all streams were significant, but then only offered this ability to areas that were already in poor condition, then people were being penalized for not having made mistakes previously. He said it may be possible to determine a priority order that would not preclude them from the same opportunity.

Councilor McLain said it was important to define how small the riparian districts would be. It was important also to remember the watershed approach, and not take away from a watershed approach with district plans. Noting Chair Park's question, she said many people have asked whether lack of money was a limitation in developing a district plan. In other words, could a group of property owners afford to form a riparian district? On the question of off-site mitigation, she supported the opportunity for creativity, but the test needed to be whether the overall watershed or habitat would be improved.

Mr. Turpel reviewed the implementation issues, as outlined in Ms. Wilkerson's memo. The committee had no comments on the implementation issues.

6.  Metro Response to National Marine Fisheries Service (NMFS) Draft 4(d) Rule

Chair Park reviewed his memo to the committee regarding Metro response to NMFS Draft 4(d) Rule, a copy of which is included in the meeting record. He said the response would be in the form of a letter, signed by the Presiding Officer and Executive Officer, and would be an interim step, because Metro was still soliciting comments from its regional partners.

David Moskowitz, Salmon Recovery Coordinator, said he had sent out the first draft of Metro's response to NMFS to Metro's departments for comment, and he planned to finish the revised response by the end of the week.

Presiding Officer Bragdon offered to schedule a Council/Executive Officer Informal meeting on February 29, 2000, to allow full Council review of Metro's response to NMFS. The committee agreed.

The committee discussed whether the response to NMFS should be in the form of a resolution or a letter signed by both the Executive Officer and Presiding Officer.

Chair Park felt that a resolution would be inappropriate, as Metro was still asking its local partners and the Metro Policy Advisory Committee (MPAC) for comment.

Mr. Moskowitz said that, as a former NMFS employee, resolutions did not impact the decision, although the accompanying substantive remarks were often helpful. He said it would be helpful, but not essential, for Metro to share its comments with its regional partners prior to the March 6, deadline.

Councilor McLain supported the proposal to adopt a resolution stating Metro's policy direction. She said the region's jurisdictions wanted to know there the Metro Council stood, and currently the Council had no position.

Presiding Officer Bragdon said he supported adoption of a resolution because it meant that all seven members of the Council had reviewed the proposal and publicly stated their intentions. He proposed a resolution that would simply say, "Be it resolved, here is the letter; more to follow."

Presiding Officer Bragdon proposed that Metro recommend that NMFS adopt stormwater management standards that would allow any jurisdiction that met them to be granted an exception under the 4(d) rule.

Chair Park asked staff to incorporate Presiding Officer Bragdon's comments on stormwater management as a subsection of the response, under item #3.

The committee concurred with statements 1 through 6 in Chair Park's memo.

Chair Park said a broader question related to statement 7 concerned the proposed setbacks of 200 feet, and whether they applied in this particular area for water quality issues versus Goal 5 habitat issues. He said the committee should discuss this further in the future.

Chair Park directed Mr. Morrissey, Mr. Moskowitz and Ken Helm, Assistant Counsel, to refine Metro's response to NMFS for the Council/Executive Officer Informal meeting on February 29, 2000. He said the Council would review the response at the Informal and decide whether to submit the response as a letter or a resolution. If the Council chose to adopt a resolution, it could vote at the March 2, 2000, Council meeting.

5.  LCDC Review of Rural Reserve Rule and Goal 14

Mr. Shaw reviewed his memo regarding major amendments to Land Conservation and Development Commission (LCDC) Goal 14. The memo includes information presented by Mr. Shaw and is included in the meeting record.

Chair Park asked Mr. Cooper to address the decision on urban reserves by the Court of Appeals.

Mr. Cooper said the Court of Appeals decision on urban reserves ruled that LUBA was wrong when it determined that Metro correctly calculated how much land was needed for urban reserves. The Court of Appeals said Metro was wrong because a connection between the Urban Growth Report and the Urban Growth Management Functional Plan (Functional Plan) was not established in the form of an ordinance. He recommended that prior to final determination of need, the Council adopt by ordinance how staff should determine the need number. He said the ordinance may simply repeat decisions made previously by the Council, but it would be advisable to state it explicitly as part of the Functional Plan/Regional Framework Plan policy document. Based on legal counsel's review of the Court of Appeals decision, any action by the Council to determine the need number could be appealed.

Secondly, Mr. Cooper told the committee that there had been a continuing conversation among the Director of the Department of Land Conservation and Development (DLCD), LCDC, and Metro over whether or not Metro would meet its obligation to move the UGB this year in periodic review. Mr. Cooper outlined the advantages and disadvantages of Metro meeting its obligation this year through the periodic review process. One advantage would be that if someone appealed the Council's decision, the appeal would go directly to the Court of Appeals, and historically the Court of Appeals has given great deference to commission actions in the periodic review process on urban growth boundaries, and therefore it would be less likely for the Council's decision to be remanded. The disadvantages were twofold: 1) the periodic review process was cumbersome and timely, and 2) it gave LCDC and its staff a distinct advantage in the process because if they disagreed with the Council, they could tell Metro to do it again, without filing an appeal. He said the decision on whether to pursue the periodic review process needed to be made quickly.

Chair Park asked committee members to please talk to Mr. Cooper individually for further details.

Councilor McLain said choosing to meet Metro's obligation for a 20 year land supply through the periodic review process was the biggest process decision the Council could make. She said in November and December 1999, when the issue was discussed, MPAC did not go on record as being in favor of periodic review. While she was glad to start a discussion about the matter, it could not be rushed. She said the Council could choose to use periodic review this year, or during future UGB decisions, but the Council would not be losing an opportunity if it did not act now.

7.  Councilor Communications

There were none.

There being no further business before the committee, Chair Park adjourned the meeting at 5:30 P.M.

Respectfully submitted,

Suzanne Myers

Council Assistant

i:\minutes\2000\growth\022200gmm.doc

ATTACHMENTS TO THE PUBLIC RECORD FOR THE MEETING OF FEBRUARY 22, 2000

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