MINUTES OF THE METRO COUNCIL GROWTH MANAGEMENT COMMITTEE

Tuesday, May 16, 2000

Council Chamber

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

Members Absent:    None

Also Present:    Susan McLain

Chair Park called the meeting to order at 3:03 p.m. He said the Presiding Officer would not be at the meeting due to a family medical emergency.

1.  Consideration of the Minutes of the April 18, 2000, Growth Management Committee Meeting

2.  Public Hearing: Metro's Proposed Urban Growth Boundary (UGB) Periodic Review Work Program

Mary Weber, Manager, Community Development, Planning Department, outlined the periodic review process and reason for the public hearing. She said the full Council will consider any proposed changes and adopt a work program and need evaluation on May 25, which will be forwarded to the Land Conservation and Development Commission (LCDC). LCDC staff will review it make a recommendation, and then the Commission will hold a public hearing. LCDC anticipated adopting Metro's work program at its July meeting.

Chair Park opened a public hearing on Metro's Proposed UGB Periodic Review Work Program at 3:06 p.m.

Jim Hinman, Department of Land Conservation and Development (DLCD), said he had two comments on Tasks 2 and 3. First, he recommended combining Tasks 2 and 3 in order to result in an acknowledgeable work product. He said Task 2 ended in a report on sub-regional analysis and draft recommendations for amending the UGB based on sub-regional need. This would be a findings and recommendations document, not a final decision on a UGB amendment. By combining Tasks 2 and 3, the end result would be a UGB amendment, which would be a final decision and could be acknowledged. He had spoken with Metro staff about this, and thought they would develop a more specific proposal on how to address his recommendation. In fact, the decision could be adopted in two different ordinances within the work program if the Council wants to keep them separate as ordinances. The second issue was more complicated, and related to Subtask 8(E)1-2, which discussed the possibility of adopting a 20 year boundary or a 20 year-plus boundary. DLCD recommended using more general language in the work program. This would ultimately be a policy decision by LCDC in response to a specific UGB that would be adopted by Metro. In DLCD's view, including this language burdened the work program with this policy decision, which might invite an appeal and lengthen the process. If the work program could be approved without an appeal, the result would be a streamlined process. He said DLCD would work with Metro and Metro staff to bring the work program and evaluation before LCDC at its July meeting.

Chair Park said he understands that Metro is on the schedule for LCDC's meeting on June 8-9, 2000, to discuss the work program. Some of the issues raised by Mr. Hinman will be discussed prior to LCDC's meeting in July.

Mr. Hinman said they should confirm the agenda, but he was at the last meeting and heard the discussion that Metro wants to come back to the Commission monthly.

Councilor McLain said she understood Mr. Hinman's first suggestion, and thought it was more an issue of semantics than a change of product. She had a couple of questions, however, about his second suggestion. He indicated that he feels a policy issue is imbedded in the work program, and that taking out that language will streamline the process. She said his comment confused her, because without the assumption of a timeframe, there will be no good way of determining what the data means. The purpose of the work plan is to make sure Metro and DLCD agree on the assumptions. Without including the 20 year or 20-plus year timeframe in the work program, there is a missing element of assumption: what is Metro planning for?

Mr. Hinman said he understands her dilemma, however, it needs to be balanced against the question of what kind of determination Metro is likely to receive from LCDC in approving a work program. In other words, a work program is intended to set forth the goals and issues to be addressed as work tasks in periodic review. How those goals and issues will be addressed, or what specific work product eventually will be adopted as a work task and submitted for acknowledgement is a different question. Metro might seek a policy determination from the Commission about what timeframe can be adopted. However, he questioned how specific an answer Metro can hope to receive, as opposed to the need to get a work program approved so that Metro can start on Task 1. If Metro puts a very controversial policy question into the work program, how likely is it to lead to further appeals?

Councilor McLain said the issue, though, is how much time sill be saved if , for example, the Commission has a different idea of what it is reviewing the work plan for. Metro does not want to go in blind; it would like to know that the Metro Council and the Commission are starting the process with the same assumptions. How can she know that both the Metro Council and the Commission are reviewing the data with the same knowledge and same base, if the work program does not include that specificity?

Mr. Hinman said the best answer he can give was that any work task is reviewed against applicable statutes, rules, and statewide planning goals. If Metro thinks it can get a better, more specific answer by submitting the work program as it is currently written, it can do so. He suggested, however, that the Council weigh that option against the possible procedural problems that are likely to arise and the likely specificity that LCDC will be able to give Metro, without a specific UGB amendment proposal.

Jim Irvine, 16550 Southeast 232^nd, Boring, introduced himself as the oldest in a family that is involved in both the nursery business and the homebuilding business. He added that because of the complexity of this issue, the Governor has appointed him to serve on the Willamette Restoration Board, which addresses fish. He applauded the Council for producing a work plan, and said there is real value in producing a work plan and allowing members of the public to comment. Because of his background, he is frustrated by the lack of certainty in the planning process thus far. He asked the committee to take into consideration both sides of his family. On the nursery side, they had already been forced to move their nursery operation once because of the impacts of past planning. Now they are caught up in the inability to do anything with the land because it is locked up in uncertainty. On the homebuilding side, they are building very sporadically in the Portland area. Their company prides itself in its ability to provide first-time home ownership opportunities, and has received numerous national honors. Now they are forced to build in Lebanon, Albany, and Vancouver because they cannot afford to buy land to build in the metropolitan area that will provide an affordable structure for first-time homeowners.

Mr. Irvine commented on the Subtask 3, Alternatives Analysis, statement of purpose: "To identify exception lands and exclusive farm use land that is completely surrounded by exception land . . . ." He said he is not an attorney, and cannot define the descriptor "completely," but he gets scared by that kind of very direct, harsh approach. He said he can tell the committee professionally that there are exclusive farm use (EFU) lands that are can be developed and provide accessibility to exception lands. It would be horrible if there was no opportunity to talk about that holistic approach to finding larger parcels of land in order to provide the types of density necessary to build out and utilize public services well. He has an ownership interest in some of the land known as site 65. He said the lack of certainty frustrates many families in site 65. They can no longer farm their land because of the urbanization impacts south of the property along Springville Corridor. His family cannot get water without buying public water to use for nursery stock; therefore they had to move. Having a very tight descriptor in Metro's work plan precludes the opportunity to better utilize land in an area for urbanization. He thought Metro would want to have the opportunity to at least look at those sites. It precludes the opportunity to use all the work that has already been done over the past five years by the public sector and the private sector in those communities, in terms of master planning to achieve the densities set out in Metro's regional goals. He said if Metro forecloses the opportunity for discussion, it will hurt the community. He thought to would be possible to find areas for urbanization, that would include limited amounts of EFU land, that would result in ideal development. He encouraged the committee to not preclude its opportunity for doing that, both in the near-term and long-term, because of the frustration, the capital outlays that have already been made, and the opportunity to show that a difference can be made.

Chair Park said some of the tightness in the work program language is due to Oregon Revised Statutes (ORS) 197.298(3), which lays out the criteria that Metro has to use.

Mary Kyle McCurdy, 1000 Friends of Oregon, said 1000 Friends of Oregon generally supports Metro's proposed periodic review work program. However, her organization is strongly opposed to the work described in Tasks 2 and 3, subtasks 7-10, which pertains to sub-regional needs for housing or employment. A letter submitted by Ms. McCurdy includes information that she presented, and is included in the meeting record.

Councilor McLain noted that while Ms. McCurdy and Mr. Hinman gave similar testimony, there was a distinct difference in their recommendations concerning Tasks 2 and 3. It sounded like Ms. McCurdy and Mr. Himan were both asking Metro to consider one option or language more than another. Ms. McCurdy preferred the "twenty" versus the "twenty plus." Their testimonies were different, however, because Ms. McCurdy spoke about how the importance of the assumption that Metro is going for a 20-year supply versus a 20-plus supply. Looking at the work plan, how effective will the plan be if Metro does not have that timeframe or structure within the document?

Ms. McCurdy said she had not heard DLCD's testimony until today, and she can see both sides of the issue. On the one hand, it would be nice for Metro to know up front if there is room for more than a 20-year land supply. 1000 Friends of Oregon does not believe there is. However, she also understood Mr. Hinman's point that if Metro has a work program with that language in it, 1000 Friends of Oregon might appeal it, which will potentially delay Metro. She said she does not have a great answer at this time concerning which way Metro should go.

Councilor McLain asked if Ms. McCurdy wants Metro to pick one or the other, whereas Mr. Hinman wants Metro to not pick either and do it later. If the decision is a basic assumption, either Metro is doing a 20-year land supply or a 20-plus land supply, that will affect how Metro looks at the results on the work plan.

Ms. McCurdy said she would like to see all of the sub-regional analysis tied to one of the two-year time periods: either 1997-2017 or 2002-2022. They could discuss at a later date the definition of sub-region, how to balance, etc. She wanted those tied to a 20-year time period, also.

Elana Emlen, City of Portland Planning Bureau, reviewed a letter from Vera Katz, Mayor of the City of Portland, regarding Metro's proposed periodic review work program. She said Mayor Katz supports Tasks 1 and Task 4, but not the interim Tasks 2 and 3. The letter from Mayor Katz includes information presented by Ms. Emlen and is included in the meeting record.

Councilor McLain noted that Metro is currently working on Goal 5 and sub-regional inventories of streams. She said once the inventories are completed, Metro will know how much land needs to be protected in each sub-regional area. She asked Ms. Emlen if she still does not want Metro to do any UGB adjustments in 2001 if the adjustment addresses protection of sensitive lands, as opposed to what Ms. Emlen defined as sub-regional need.

Ms. Emlen said she has not yet spoken with the mayor about this, but she thought the City of Portland would like to see Metro make a defined break between periodic reviews. She said it is unfortunate that Goal 5 work is taking longer than planned, but it is a big job. If Goal 5 is not completed by October 2000, and instead is finished in 2001, Metro will be so close to 2002 that it will be alright to take a short break and incorporate the Goal 5 information into Metro's 2002 expansion. Otherwise, Metro will be focusing on the UGB for the foreseeable future.

Councilor McLain said looking at the Urban Growth Management Functional Plan (Functional Plan), did Ms. Emlen realize that no matter when Metro adopts Goal 5, there will be a two or three year lapse before any land will actually be protected on the ground? Is that one year not important if Metro is losing opportunities to protect stream banks from further development, because Metro is not protecting the land as quickly as possible?

Ms. Emlen said that is a good question for the Metro Policy Advisory Committee (MPAC) to consider. Councilor McLain said she would let Ms. Emlen carry the question to MPAC.

Greg Leo, Rosemont Property Owners Association, asked the seven members of the Rosemont Property Owners Association who were in attendance to stand. Mr. Leo said the Rosemont Property Owners were at the meeting to support Metro's proposed work program. He submitted comments from their attorney with suggested amendments to the work program. Written testimony submitted by Mr. Leo includes information that he presented, and is included in the meeting record.

Chair Park closed the public hearing at 3:34 p.m.

Ms. Weber said staff will compile all the public testimony, and on May 25, come before the full Council with recommendations. The Council may then adopt the work program on May 25, or at a subsequent Council meeting. After Council adoption, the work program will be formally submitted to DLCD, DLCD staff will review it, and the DLCD director will either make a recommendation or send it directly to the Commission. During June and July, the work program as submitted can be appealed. The Commission will make its recommendation at the end of July, and its decision can also be appealed. In the interim, however, Metro will proceed with the work program items in
Task 1.

Chair Park said the committee had just heard about the potential appeal of an element of the work program pertaining to the 20-year-plus question. If the work program is appealed because of that element, will it preclude the Commission from answering the policy question? Should Metro then interpret that as a "no" answer?

Larry Shaw, Senior Assistant Counsel, said after Metro adopts the evaluation and work program, there will be a 21-day period for written objections to be submitted directly to DLCD for LCDC consideration. In answer to Chair Park's question, yes, based on such an objection, the Commission can give an answer to the 20-year-plus policy question. If the Commission decides that no, Metro cannot expand beyond a 20-year land supply, and the group that objected is satisfied, then there may not be an appeal to the Court of Appeals. If the Commission answers yes, Metro can expand the UGB for longer than 20 years to address sub-regional need, and the group that objected is not satisfied with that answer, then they can appeal to the Court of Appeals. The Court of Appeals will then consider LCDC's interpretation of its own Goal 14.

Chair Park asked whether, if Metro eliminates that particular portion of the work program, it would then assume the default of 20 years? Would this eliminate Metro's ability to get an interpretation from LCDC on whether it can go beyond a 20-year land supply in certain circumstances?

Mr. Shaw said Mr. Hinman suggested that, by the time Metro finishes Tasks 2 and 3, the 20-year issue may not be triggered, so an interpretation from LCDC is unnecessary at this time, and the fight can be avoided. The argument against "busting the 20-year UGB boundary" is based on a false premise, because the October 2000 expansion is intended to provide enough land for housing until 2017, which is now less than 20 years away. So by the time Metro completes Tasks 2 and 3, the issue of a 20-year-plus land supply may not be relevant. The advantage to including the language about a 20-year-plus land supply is that if Metro anticipates bringing in enough land to trigger the issue, then Metro may want an earlier determination on the policy question. He added that the pending appeals of Metro's 1998 UGB expansions create more uncertainty. If a significant portion of the 1998 amendments are remanded, Metro may have to make another UGB amendment just to return to a 20-year supply in 2017.

Councilor McLain said in the past, the Council adopted a land supply of more than 20 years when it designated urban reserves.

Mr. Shaw said urban reserves were intended to provide a 50-year land supply, which was different.

Councilor McLain agreed, and said that when the Council was reviewing the urban reserves, it said it wanted to add more than 20 years to the UGB in order to provide certainty. She understood Mr. Shaw's explanation that if the decision takes longer than three years to complete, then Metro will not reach a 20-year supply, let alone a 20-year-plus supply. However, is Metro trying to have a clear findings package that states the need? According to House Bill (HB) 2709, the supply needs to be at least 20 years. How can Metro make sure its findings are as strong as possible, when there is a flexibility of 17 to 25 years, for example.

Mr. Shaw said the statute set up the strange counting for 20 years. Under Goal 14 it says "long-range planning," and historically that has been interpreted as about 20 years. But the statute says to establish a number in 1997, then take two years to update that 20-year number. Metro is taking a little more than two years to update the number, but the counting began in 1997. His point was that once Metro complies with that statute, which is Task 1, then the statute will no longer be an overlay on top of Goal 14. Metro will then only need to satisfy Goal 14. If Metro does a UGB amendment, it will use its best information on its need for that amendment. If that happens to be a sub-regional UGB amendment, based on that part of Goal 14, then in effect, Metro will be using the 1997 20-year number, plus any new information.

3.  Review Urban Growth Report Table 3: Information on Constrained Lands

Andrew Cotugno, Director of Planning, reviewed his memo to Executive Officer Mike Burton regarding Urban Growth Boundary Capacity Estimate and Update, and the draft Urban Growth Report (2000 Update) summary table on dwelling unit estimates. Mr. Cotugno's memo and the table include information he presented and are included in the meeting record.

Sharon Kelly, Transportation Planning Supervisor, reviewed her memo to Mr. Cotugno, regarding Urban Growth Report Update on Stream and Floodplain Protected Lands (Title 3). Her memo includes information she presented and is included in the meeting record.

Councilor Washington asked how staff arrived at the estimates of building permits and lots in Table 4 of her memo.

Ms. Kelly said Data Resource Center staff identified and analyzed the areas wholly contained within the boundaries of designated Title 3 lands.

Chair Park agreed with staff's recommendation to reduce the number of housing units projected to be constructed in Title 3 regulated areas by 1,900 units, in terms of getting an accurate count.

Mr. Cotugno said the good news is the trend of protection, as result of the Title 3 action.

Chair Park said Metro may need that information in the future to demonstrate to the National Marine Fisheries Service (NMFS) that Metro can successfully protect sensitive lands. He thanked Ms. Kelly for her excellent work.

Mr. Cotugno said staff will continue to refine Goal 5 and Table 1 and then return to committee. He proposed that they also start this discussion with the Metro Technical Advisory Committee (MTAC) on Wednesday, May 17, and MPAC on Wednesday, May 24. MTAC and MPAC have already reviewed the staff work on accessory dwelling units, but not on constrained lands or the resulting overall UGB need conclusion.

4.  Jobs Research/Industrial Land Supply

Mr. Cotugno reviewed the work underway relating to jobs, and how it affects the planning process in general, and the UGB in particular. He said when the Jobs Research report was published last December, it included a UGB capacity analysis for both housing and jobs. The bottom line conclusion of the jobs analysis is quite similar to the housing analysis, however there are some important differences. The similarity is that with Title 3 protections, there is a slight surplus of acreage, whereas with Goal 5 additional protections, there is a deficit of about 700 acres. However, the details of what kinds of jobs lands are available in the region needs more deliberation. How can the region accommodate those jobs? Essentially, staff determined that the region has a surplus of industrial lands, but a shortfall of commercial lands. Further work and policy determination will be needed to determine how to address this problem.

Chair Park said staff is assuming that industrial and commercial land is interchangeable. He asked if is reasonable to treat industrial land as a finite amount, given that in some locations, only a certain amount of land is logical for industrial purposes? He asked if an analogy could be made between agricultural and industrial land: once it is converted, it cannot go back?

Mr. Cotugno said that was his point; it is not a blanket decision. Some industrial lands are not suitable for commercial use, either because of market conditions or a policy choice about how to use those lands. It depends on what is logical for each location. He noted that sub-regional need will focus on jobs, particularly in Clackamas County. It is more difficult to predict that jobs will go where they are wanted than it is to predict housing. He said Metro staff is continuing to participate in the regional Industrial Lands study.

Councilor McLain added that it is important to consider the possibility of changing residential zoning to industrial or commercial zoning, if it is logical for a particular area.

Mr. Cotugno said the shift from housing to jobs has been a focus in the higher concentration areas, like Clackamas Regional Center, Southeast 82^nd Avenue, and other places where the market leads to higher-density jobs. Conversion of other areas from residential to jobs is more problematic due to the market conditions needed for jobs to be successful.

5.  Discussion of Goal 5 Timeline and Options for Metro Policy Advisory Committee (MPAC)

Chair Park he asked Ken Helm, Assistant Counsel, to give a timeline from when Metro adopts Goal 5 regulations to full implementation.

Ken Helm, Assistant Counsel, reviewed his memo regarding compliance timeline - fish and wildlife habitat conservation program. The memo includes information presented by Mr. Helm and is included in the meeting record.

Michael Morrissey, Senior Council Analyst, reviewed his memo to Chair Park regarding Goal 5 options to be presented to MPAC. The memo includes information presented by Mr. Morrissey and is included in the meeting record. He asked for committee direction on the wording of the two options.

Councilor McLain said she appreciated Chair Park's leadership in asking MPAC its opinion on the two options. She said it is important to clearly explain the two options, because she still had questions after reading the memo.

Chair Park said option 1 would give the fullest amount of protection, and potentially the greatest amount of UGB expansion by the October 31, 2000, deadline. Option 2 would be a lesser amount of protection, and therefore some lesser amount of potential expansion, depending on whether Metro uses a state safe harbor Goal 5 protection zone of 75 feet on a yet-to-be-determined amount of stream segments.

Councilor McLain said it is important that MPAC understands that option 1 is based on the Goal 5 green document, which is still in draft form and does not propose a uniform 200-foot zone. She recommended emphasizing that if MPAC selects option 2, it could create backward movement because some counties already regulate more than 75 feet.

Chair Park said the main objective of the memo is to get an answer from MPAC, because Metro is at a decision point. MPAC has expressed a desire to slow down, and if Metro is going to change its work plan, it needs to do it as soon as possible. He asked if the committee supported cleaning up the language and forwarding it to MPAC, asking if MPAC would prefer complete Goal 5/Endangered Species Act (ESA) regulations versus limited Goal 5 regulations for Urban Growth Report purposes. If the committee approves, the question will go to the Council/Executive Office Informal meeting on Tuesday, May 23, and then to MPAC on Wednesday, May 24, 2000.

The committee agreed. Chair Park directed Mr. Morrissey and Mr. Helm to revise the language and move forward.

6.  Councilor Communications

Councilor Monroe said he appreciated that Chair Park is pushing MPAC to make a decision on Goal 5. He said he is frustrated, however, because he has been through this process for many years and he would like it to be done as well as possible. He said he hopes Chair Park gets a definitive answer out of MPAC, and that it is a right answer, but he reminded Chair Park that MPAC is an advisory committee to the Metro Council, and the tail does not wag the dog.

There being no further business before the committee, Chair Park adjourned the meeting at 4:34 p.m.

Respectfully submitted,

Suzanne Myers

Council Assistant

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ATTACHMENTS TO THE PUBLIC RECORD FOR THE MEETING OF MAY 16, 2000

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