MINUTES OF THE METRO COUNCIL GROWTH MANAGEMENT COMMITTEE

Tuesday, March 7, 2000

Council Chamber

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

Members Absent:    Rod Monroe

Also Present:    David Bragdon, Susan McLain, Bill Atherton

Chair Park called the meeting to order at 3:32 P.M. He noted that Councilor Monroe was in Washington, D.C., on Council business, and that his absence was excused.

1.  Consideration of the Minutes of the February 22, 2000, Growth Management Committee Meeting

2.  Fish and Wildlife Habitat Protection (Goal 5) Issues and Options

Chair Park noted that Elaine Wilkerson, Director of Growth Management Services, was in the audience, but would not make any presentations because of laryngitis.

Mark Turpel, Manager of Long-Range Planning, introduced Paul Ketcham, Principal Regional Planner, who joined Metro's staff on February 3, 2000.

Mr. Ketcham said that prior to Metro, he worked for eight years as the conservation director at the Audubon Society of Portland. Prior to that, he worked for eleven years as a land use planner for 1000 Friends of Oregon, specializing in State Land Use Goal 5 (fish and wildlife habitat protection).

Chair Park and Councilor Washington welcomed Mr. Ketcham to Metro.

Councilor Washington asked how Mr. Turpel and Mr. Ketcham's work related to the work of David Moskowitz, Salmon Recovery Coordinator.

Mr. Turpel said Mr. Moskowitz, as a former employee of the National Marine Fisheries Service (NMFS) contributed significant knowledge of the federal program and the listing of Coho Salmon and Steelhead Trout under the Endangered Species Act (ESA). Mr. Turpel said he and Mr. Ketcham worked on the Goal 5 regulations, as directed by the Metro Council, and coordinated their work with Mr. Moskowitz.

Mr. Ketcham reviewed the staff report on fish and wildlife habitat protection (Goal 5) issues and options, a copy of which is included in the meeting record. He noted that at this date, the city of Portland was close to submitting its comments on the December draft of the Streamside Report, and staff would forward all formal comments to the Council. He said there were two sources of input from the region's cities: 1) direct input from city council members and planning commissioners, which staff was correlating, and 2) writing comments from some jurisdictions' staff. He said today, staff was seeking preliminary direction from the committee on how to address major issues in the Goal 5 program. The staff report raised five basic questions, and included background, analysis, options and staff recommendations. Mr. Ketcham reviewed the five questions and recommendations.

In relation to Question 1, Councilor McLain asked if Metro would fulfill all the draft 4(d) rule requirements except the stormwater application if it did not enhance the Title 3 stormwater regulations with a knit-together program.

Mr. Ketcham said yes, the Goal 5 program in itself was not sufficient to comply with the 4(d) rule. Metro would need to supplement the Goal 5 program to provide an adequate overall program for 4(d) rule compliance. The main issue outstanding was stormwater.

Councilor McLain said she wanted to make sure that the Goal 5 regulations, as a stand alone piece, would not hinder a response to the 4(d) rule.

Presiding Officer Bragdon said while there was a lot of overlap between Goal 5 and the 4(d) rule, they were not identical. He said it was important to make the point that while local jurisdictions may work with NMFS individually to comply with the 4(d) rule, they must still comply with Metro's Goal 5 state land use laws.

Councilor Washington asked how the differences between Goal 5 and the 4(d) rule would be resolved. He said he did not want to spend the next few months in endless conversations.

Mr. Turpel said the goal of the program was to demonstrate that there was not just one way to do it.

Mr. Ketcham added that with the program, staff was trying to establish regional goals that could be supported by everyone. One of the primary goals was that the region's irreplaceable natural resources needed to be protected, maintained, and restored. This goal had a context in Metro's 2040 planning process, the Regional Framework Plan, the Regional Urban Growth Goals and Objectives (RUGGO), statewide planning Goal 5, and most recently, Metro's obligations under the federal ESA for recovering salmon. Staff was also working to make sure that the program had a strong ecological basis, so that it would actually increase the function of the region's streams and rivers. He said there would always be differences of opinion on these matters, but staff was trying to devise a process that could accommodate those differences, to the extent that it would be consistent with the goals.

Councilor Washington thanked Mr. Ketcham, and said that was what he wanted to hear.

In response to a question from Presiding Officer Bragdon, Mr. Ketcham clarified that the staff recommendation that "the Goal 5 Program should comply with all applicable criteria under the draft 4(d) rule" addressed new urban development. Staff did not recommend expanding Metro's Goal 5 Program to include items such as road building guidelines or pest management.

Mr. Shaw said the regional significance of all streams was a very important area in making the necessary legal connections. He stressed the importance of clearly defining "intermittent streams" as including "altered water courses" but not "completely human-created agricultural ditches." He said Metro needed clear definitions in the draft 4(d) rule from NMFS.

Chair Park asked if anyone had asked the Water Resources Department for its definition of "intermittent streams"?

Mr. Ketcham said there were many definitions of "intermittent streams" used by regulatory agencies and land management agencies. Essentially, they all defined them as streams that passed water seasonally and had a defined channel to convey water. The definition did not distinguish between fish bearing and non-fish bearing streams.

Chair Park asked staff to clearly define the term "intermittent streams."

During discussion of Question 3, Chair Park asked why local jurisdictions or property owners would be required to prove that buffers less than 200 feet would not be harmful, but Metro was not required to prove that 200 foot buffers were necessary.

Mr. Ketcham said the option preferred by staff would establish criteria and minimum standards for those circumstances, and a process for addressing the minimal standards. He said the basic goal was to have a program that made sense from an ecological perspective, that was responsive to the needs of private landowners whose properties were wholly within a regulated area, and flexible in its implementation. He said Metro staff's recommendation was that the preponderance of science supported a regulated zone of 200 feet. Staff believed it was appropriate to provide an option to local governments if they did not with to pursue the "safe harbor" approach, to demonstrate that lesser width corridors would provide adequate protection to their streams.

Councilor McLain said in reviewing the science that supported 200 foot buffers, it looked like a conservative figure. She did not believe staff was asking others to do something Metro was not willing to do. Instead, staff was saying that it could scientifically prove the necessity of 200 foot buffers, however they wanted flexibility because they did not believe that buffers were the only possible approach.

Ken Helm, Assistant Counsel, said the "regional safe harbor" option could be compared to ordinary development standards for a residential zone. One of the local options described by Mr. Ketcham was for a discretionary environmental review. The analogy in this case would be a simple variance procedure. In that context, there was a built-in balance of values, with development standards and a way to vary from them. The process understood that under certain circumstances, variations were needed. Metro would not be holding people who requested a discretionary environmental review to a different standard. Instead, Metro would be weighing the evidence and setting the regional standard, and then giving local jurisdictions a way to allow for highly unusual circumstances.

In reference to Question 4, Councilor Bragdon recommended using the phrase ”comparable outcomes" rather than "lesser standards.” Metro was not be letting people off the hook; it was acknowledging current situations and working to achieve a better outcome. He noted that while it was important to balance the economics of redevelopment, redevelopment could be used to improve both habitat and economics. He cited Fairview Village as an example: the stream buffers were only 50 feet, but the habitat was improved from its condition five years ago because the developers addressed stormwater management and removed all of the culverts. He said the timing requirements for how the plans would be approved was important.

Mr. Turpel said there were a couple of alternatives for local jurisdictions or developers. If it was simply an application for a specific development, there could be a local discretionary review, which would be similar to a variance process, and would be under a 120-day rule requirement. If a jurisdiction went with the riparian district plan, it would probably be a more involved process and could take a substantial amount of time. The details had not been worked out yet in terms of performance standards, so it was not possible to estimate time.

Councilor Bragdon asked what kind of staff resources or expertise would be needed to evaluate such proposals?

Mr. Turpel said the staff proposal was for the local jurisdiction or private property owner to put together a plan that would go before a scientific peer review panel, and then go to the Metro Council for compliance review. Some local jurisdictions had asked whether the last step was necessary, and staff was still working with the Goal 5 Technical Advisory Committee (Goal 5 TAC) and the Metro Technical Advisory Committee (MTAC) on the administrative, procedural aspects. In terms of staff demands, this would clearly create a burden for local government staff. If a private party was making the proposal, it would need to hire consulting services to help formulate a plan.

Chair Park said one of the policy questions that had not been asked was the question of equity. He said they needed to address the question of whether the regulations should apply equally to everyone across the region. Currently, the approach primarily placed the burden on those with property directly on the streams, even though the benefit would be region-wide, and he asked if that was fair. He said was looking at the difference between a redevelopment and a greenfield. Staff proposed that redevelopment be allowed on greenfields where new development would never be allowed, based on the justification that it would make things better. While this was great, it was not as good as it would have been had the redevelopment occurred at the same standards as the greenfield development. There seemed to be an equity question that had not been addressed.

Councilor McLain said the staff report tried to address that issue in a number of different ways, although there was not yet have a complete answer. It had been discussed in the frame of property rights, and equity between property rights of property owners who had individual residential homes, people doing non-residential activities, those doing new development, and those doing redevelopment. All four of those areas needed to be addressed in Metro's response to public property rights. As far as "takings," Metro was trying to address it in that way, too.

Mr. Turpel said program currently being undertaken was paid for by all the region's ratepayers, and the costs to convert culverts would be born by all the property owners in the region, even though the property owners along the rivers will benefit from the return of fish.

Councilor Washington thanked Mr. Ketcham for the clarity of his presentation.

Councilor Bragdon said if Metro continued with the performance standard approach and continued to look at the world as it was, then he would disagree with Chair Park about the existence of an equity problem. Obviously, development patterns and past practices of the 1890s and the 1950s created some situations that should not be perpetuated, and which should be undone as much as possible. Metro could be equitable by allowing the same practices that occurred then to happen now, or it could be equitable by restoring everything to the state it was during the Lewis and Clark Expedition, but neither approach was practical. In his opinion, staff's approach of concentrating on performance standards and outcomes would address the equity problem.

Councilor McLain asked if there would be an opportunity to answer some of staff's questions. She said it was would be helpful to give staff direction prior to the Metro Policy Advisory Committee (MPAC) meeting on March 8, and the Water Resources Policy Advisory Committee (WRPAC) meeting on March 13.

Councilor Bragdon praised Mr. Ketcham for the clarity of his writing.

Councilor Washington said the staff's recommendations were on the right track.

Chair Park opened a public hearing.

Mike Houck, Audubon Society of Portland/Coalition for a Livable Future, said he would send the committee members more detailed comments via email. He summarized that the Audubon Society of Portland and the Coalition for a Livable Future generally supported the Metro staff recommendations, and felt the recommendations represented the majority view of Goal 5 TAC. He said in the next several months, the Council would hear from many people that there was not science to support the recommendations. He said that was bologna, and that the proposed approach was very conservative. He said a regulated buffer of 300 to 600 feet on each side of all streams was easily justifiable by the science, depending on the objective. The staff recommendation was a realistic compromise, recognizing that this was an urban environment and that there were other goals. He added that the Goal 5 objectives were not new ideas, they were included in prior Metro documents. He said the recommendation before the Council represented the best balance possible.

Councilor Atherton asked Mr. Houck if the muddiness of Willamette River created problems for fish and wildlife. He asked whether 200 foot buffers along the entire Willamette River valley would reduce the amount of private property in the public waterway, or if the problems were just coming from the immediate Portland area.

Mr. Houck said yes, the river's muddiness created problems for fish and wildlife. In response to Councilor Atherton's second question, he said there were always issues upstream that needed to be addressed, but the metro region needed to do the best it could do within its jurisdiction to address those issues.

Chair Park closed the public hearing. He told Councilor McLain that the committee would have to wait to talk about direction to staff due to time constraints.

3.  Urban Growth Boundary Timeline Status Report

The committee did not discuss agenda item three.

4.  Periodic Review Schedule

Kay Vandehey, 17207 Southwest Siler Ridge Lane, Aloha, submitted a request to testify before the committee to ask Metro to include urban reserve area 49 in the urban growth boundary (UGB).

Councilor Park said no action had been taken at this time, and Metro was complying with the Court of Appeals decision on what lands to study. He asked Mr. Vandehey if he wanted to testify today, considering that the committee would not be taking any action in the near future. He invited Mr. Vandehey to testify before the full Council on March 9, 2000.

Mr. Vandehey said he was concerned that the Council may make its decision in May 2000, when he would be out of town.

Chair Park said the Council would not be taking any action in May. The Council would not begin looking at land until June, after it had determined the needs number. He said Mr. Vandehey's comments may be more appropriate at that time, if area 49 was included in the areas under consideration.

Mr. Vandehey said he would return to the committee to testify at a later date. A copy of Mr. Vandehey's written testimony is included in the meeting record.

In response to a question from Chair Park, Mr. Cooper said that while the Council scheduled Citizen Communications for testimony on items not on the agenda, it was not customary for committees to do so.

Mr. Cooper reviewed his memo to Chair Park regarding Metro's Periodic Review Process, a copy of which is included in the meeting record. He described the early timelines, should the Council decide to follow the periodic review process. The earliest opportunity for the Land Conservation and Development Commission (LCDC) decision on periodic review would be at the end of April. For Metro to be on the schedule for periodic review as the vehicle for moving the UGB during the extension period, LCDC would have to make its decision to initiate periodic review at that time. In order to keep on the schedule, the Council would have already needed to make some preliminary determinations about what work program it would follow so that it could send a proposed work program to LCDC for its approval immediately. He said staff needed to return to the committee in two weeks with a preliminary outline of the work program.

Chair Park asked Ms. Wilkerson if the UGB Periodic Review Work plan appeared to be an acceptable work plan for LDCD, based on her conversation with Jim Sitzman, Department of Land Conservation and Development (DLCD). A copy of the UGB Periodic Review Work plan is included in the meeting record.

Ms. Wilkerson said Mr. Sitzman had indicated that this level of detail could be considered. At the time, they discussed the nature of a couple of modifications which arose in the interim, and the draft she was writing was based on the old form. The draft incorporated a couple of places under decision on Goal 14 need to provide for the clarification of the need method, and added a stormwater interim regulations. She had not yet shown the draft to Mr. Sitzman, but they had talked about it at that level of detail. She clarified that the periodic review was only related to the top few lines of the work plan, the rest of the tasks were background tasks to give sufficient detail and findings to support balance.

Councilor McLain said she still had questions and concerns about using the periodic review process. One concern was whether this timeline could be met if Metro did not get agreement from DLCD staff on what the program meant, and on whether Metro's methods were appropriate.

Mr. Cooper agreed that it was essential to receive further clarification from LCDC and DLCD, and he hoped to resolve those issues in the next couple of weeks.

Councilor McLain asked how Chair Park planned to work with Metro's partners, such as MPAC, on periodic review. She said MPAC had two audiences to voice its concerns: the Metro Council and LCDC. Clarity was needed on how LCDC worked with Metro's advisory groups, as well as how LCDC worked with the Metro Council and Metro staff.

Mr. Cooper said MPAC had an advisory relationship with the Metro Council. MPAC did not advise LCDC, nor did LCDC staff MPAC. However, each member of MPAC had standing to appear before LCDC as an independent actor, which was a dynamic for the Council to consider.

Chair Park said the committee would continue its discussion at its next meeting.

5.  Stormwater Planning in Relation to Goal 5 and National Marine Fisheries Service (NMFS) Draft 4(d) Rule

Mr. Helm reviewed the agenda item. A memo from Mr. Helm to Mr. Moskowitz regarding 4(d) Rule Stormwater Criterion includes information presented by Mr. Helm and is included in the meeting record.

Councilor Washington and Chair Park said they were comfortable with Mr. Helm's proposal for developing broad stormwater performance standards. Councilor McLain and Presiding Officer Bragdon also said they supported the proposal.

6.  Councilor Communications

Chair Park asked Michael Morrissey, Senior Council Analyst, to talk about the annexation request in the Cooper Mountain area (former Urban Reserve 49), which would come before the Council on March 9.

Mr. Morrissey said there would be a Council hearing on March 9, to consider a recently completed application for annexation. He said the question to consider was the Council's intent, what options were open to the Council, and possibility of establishing future policy in order to clear up confusion. Under one reading of the Metro Code, it would appear that proper completion of an annexation application guaranteed annexation. However, another section of the Metro Code said that in the findings, the main criteria for Council consideration of an annexation application pertained to consideration of moving the UGB.

Mr. Cooper added that the reason to move the Metro jurisdictional boundary is to move the UGB. When the timelines were set in the Metro Code, they were set to cover any annexation to any local government withn Metro's boundary, and were based on the Boundary Commission model. Under the Boundary Commission model, an applicant could not approach the Boundary Commission until the Metro Council first passed a resolution of intent to move the UGB. Under the new model, in which an applicant comes directly to the Metro Council for an annexation, if the Council does not intend to move the UGB, the logical response would be to deny the annexation request. The Metro Council was in a different process this year, however, because it had asked LCDC for an extension, and planned to consider expanding the UGB later this year. His advice was to hold the hearing on Thursday, accept testimony, and then delay action until a future time when the Council was prepared to address the question of moving the UGB.

Councilor McLain noted that while the current applicants were represented by very knowledgeable, aware attorneys, there were citizens who did not have lawyers, and were not aware of Metro's current process. She recommended writing a memo describing the process, which could be placed in the back of the Council Chamber until the Council made its decision.

Chair Park said staff could draft something as appropriate.

There being no further business before the committee, Chair Park adjourned the meeting at 5:36 P.M.

Respectfully submitted,

Suzanne Myers

Council Assistant

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ATTACHMENTS TO THE PUBLIC RECORD FOR THE MEETING OF MARCH 7, 2000

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