METRO COUNCIL GROWTH MANAGEMENT COMMITTEE

Tuesday, April 21, 1998

Council Chamber

Members Present:  Lisa Naito (Chair), Patricia McCaig (Vice Chair), Don Morissette

Members Absent:    None

Also Present:    Susan McLain, Ed Washington, Ruth McFarland

Chair Naito called the meeting to order at 1:36 P.M.

1.  CONSIDERATION OF THE APRIL 7, 1998, GROWTH MANAGEMENT COMMITTEE MEETING MINUTES

Councilor Morissette did not attend the April 7, 1998, Growth Management Committee meeting and abstained from the vote.

2.  URBAN RESERVE STATUS REPORT

Executive Officer Mike Burton gave an overview of the broad aspects of the current work on urban reserve planning. He summarized the contents of his letter to Chair Naito and the attached Urban Reserve Planning Status Report by Fregonese Calthorpe Associates. A copy of his letter with attachments is included in the meeting record. Executive Officer Burton said urban reserve planning is not going well; there are many areas in which nothing is happening. He said the status report is preliminary information and only gives a brief overview. He said a productivity report, which is forthcoming, will give more detail. Executive Officer Burton said all of the areas that have been identified for development can be developed, however the development will not be easy to accomplish. He identified a number of questions that will have to be answered before development can proceed, such as questions of governance and infrastructure. He said transportation and funding are daunting concerns. He said his report should have included the urban reserve master planning in the Stafford Basin area by SRI, a private firm. He noted that the Lake Oswego growth plan, which is mentioned in the consultant’s report, has been remanded back to Lake Oswego by the Land Use Board of Appeals (LUBA). He said Metro should not react to the report by giving up on its work, but instead work harder to find ways in which to encourage urban reserve planning. He said most of the current master planning is being done in areas with pending LUBA cases.

Executive Officer Burton said he is very pleased that the Council increased funding for master planning. He said, however, the increased amount will still not be adequate. He asked the Council to consider asking the State for direct assistance in master planning. He predicted that without one million dollars from the State the region will face gridlock or sprawl. He reviewed his recommendations, which are listed on page four of his letter. Executive Officer Burton distributed a draft sheet outlining the steps for changing the UGB through legislative amendment. A copy of the document is included in the meeting record.

Councilor Morissette said he is working with legal counsel to draft a resolution that would establish a time line for meeting the State-mandated requirement to meet fifty percent of the established need by the end of 1998.

Executive Officer Burton said the deadline set by House Bill (HB) 2709 requires Metro to demonstrate that it is moving on the question of adding half of the established need. He said Metro can request an extension of the deadline. He said Metro should continue to pressure itself to meet the deadline.

Councilor Morissette said his resolution is based on his goal to not have an extension, but rather to honor Metro’s current commitments under the law.

Chair Naito asked John Fregonese, Fregonese Calthorpe Associates, to review the highlights of his report.

Mr. Fregonese said the report attempts to scan local government planners and find out the status of master planning. He said the report is intended to be a reference to each urban reserve. He said he was also somewhat discouraged at the status of master planning. He emphasized, however, that master planning is in flux: since the writing of the report, the Wilsonville situation has changed and a public/private cooperation appears to be forming in Clackamas County areas 14 and 15. Mr. Fregonese reviewed his conclusions, which may be found on page 34 of his report. He said most local governments are concentrating their efforts within the UGB and have not focused their funding or efforts on master planning. He said listing all of the challenges does not mean Metro should stop its efforts or be discouraged.

Chair Naito asked for questions from the committee. There were none. Chair opened a public hearing at 1:53 P.M.

Lee D. Leighton, AICP, SRI/Shapiro/AGCO Incorporated, 1650 Northwest Front Avenue, Portland, spoke on behalf of the Halton Company. Mr. Leighton submitted written testimony, a copy of which is included in the meeting record. The substance of Mr. Leighton’s comments is contained in his written testimony.

Marc Butorac, Kittelson and Associates, Incorporated, 610 Southwest Alder, Suite 700, Portland, said his company has also been retained by the Halton Company for master planning. Mr. Butorac submitted written testimony, a copy of which is included in the meeting record. The substance of Mr. Butorac’s comments is contained in his written testimony.

Mr. Leighton said the companies he and Mr. Butorac represent consider themselves part of the process and are trying to address all of the issues. He said they consider the Urban Reserve Planning Status Report and its findings to be a stumbling block, and believe the region should not rely on the report in its current form. He asked for substantial updating of the report, for further attention to detail, and for a broadening of the base of participants. He said he and Mr. Butorac want to be part of that process.

Chair Naito closed the public hearing at 1:58 P.M.

Chair Naito said the agenda item was set for the receipt of the status report. She said she will give the committee time to review the report before the matter is brought up again in committee.

Councilor McLain said she appreciates that the productivity report is available for committee review. She emphasized that the report is only a snapshot and it becomes outdated immediately. She said the lack of funding for transportation and planning is not new information. She said the Council directed local jurisdictions to focus on infill and redevelopment: the report that they are doing so is good news. She said the most important item for the Growth Management Committee to address is the issue of timing. She said the committee needs to determine how it can make sure that First Tier Urban Reserves will help complete community planning. She thanked the Executive Officer and staff for their work.

Chair Naito clarified for the record that Councilor McLain had spoken about the Urban Reserve Planning Status Report, not the productivity analysis. Councilor McLain agreed.

3.  RESOLUTION NO. 98-2632, TO WAIVE THE METRO URBAN GROWTH BOUNDARY ANNUAL FILING DEADLINE FOR JERRY JOHNSON, CSG, INC. AND CARLA RALSTON LOCATIONAL ADJUSTMENT PETITIONS IN MULTNOMAH COUNTY

Councilor McCaig said there is an amendment to correct a typographical error. She said the resolution is a simple housekeeping measure, and said she would be happy to move the amendment and vote on the resolution. A redline version of the amended resolution is included in the meeting record.

Chair Naito opened a public hearing. No one appeared to speak with regard to Resolution No. 98-2632. Chair Naito closed the public hearing.

Chair Naito will carry Resolution No. 98-2563A to the full Metro Council.

Councilor McLain said the Council has received a number of requests for time extensions. She asked Mr. Valone for a progress report on the number of requests and staff action on the requests.

Chair Naito asked Mr. Valone if he could provide Councilor McLain with the information after the meeting, as the committee was on a tight schedule.

Mr. Valone said Resolution No. 98-2632 is only for a locational adjustment. He said the agency has received four or five letters for major amendments, and the Executive Office is processing those requests. He offered to provide Councilor McLain with more information.

4.  RESOLUTION NO. 98-2629, FOR THE PURPOSE OF APPOINTING MEMBERS OF THE AFFORDABLE HOUSING TECHNICAL ADVISORY COMMITTEE

Chair Naito said there was not support in the committee for the initial resolution due to concern about the size of the housing task force. She said she reviewed the required membership for the housing task force as outlined in the Regional Framework Plan. She said she used membership on the Metro Policy Advisory Committee (MPAC) as an additional filter for membership to the Affordable Housing Technical Advisory Committee. Chair Naito moved to substitute the membership of the housing task force with her proposed resolution, labeled Resolution No. 98-263X. A copy of Resolution No. 98-263X is included in the meeting record.

Meg Bushman, Council Analyst, said Chair Naito’s resolution has not yet been assigned a resolution number. She said if it is reported out of committee, it can be assigned an official resolution number.

Chair Naito asked if it would be possible to amend the existing resolution. Dan Cooper, General Counsel, said yes.

Chair Naito said her amendment would set up the Affordable Housing Technical Advisory Committee with twelve members, who are named in the resolution. She said the names of members are substantially similar to the people suggested in the original resolution. She said she removed the people who are represented on MPAC, such as special districts and local governments. She said the amendment proposes one additional member of a financial institution, to be recommended by the Executive Officer, as required by the Regional Framework Plan. She said the total committee membership will be thirteen.

Chair Naito opened a public hearing. No one appeared to speak with regard to Resolution No. 98-2629. Chair Naito closed the public hearing. Chair Naito asked for committee discussion.

Councilor McCaig said she has objected to the size of the Affordable Housing Technical Advisory Committee since the beginning. She said she fundamentally does not believe a committee of 26 to 29 members can be effective. She said she supports Chair Naito’s amendment, and hopes it will be understood as a commitment to affordable housing and to creating a committee which can produce real work products.

Councilor McLain said she had not yet had time to review Chair Naito’s amendment to see which people have been omitted. She said she has attended a number of open houses in the past six months, and has consistently heard from local jurisdictions, citizens and special groups that the housing task force needs to include enough people to address the many aspects of affordable housing. Councilor McLain said she would not support the proposed amendment at full Council because of the lack of review by Metro’s citizen groups and by the other agencies that have asked for more, rather than less, membership. She said Councilor Washington has met with 24 mayors and three county commissioners in the region to hear their advice on the affordable housing task force, and he used their comments to create his proposed committee membership. She said she could not agree to omit people from the committee; if anything, she believes the committee should include more people.

Chair Naito said this is a difficult situation with a number of viewpoints. She said in evaluating the resolution, she looked at the membership list and felt that MPAC is an existing committee that already has representation of the members that have been excluded. She said there is nothing to prevent MPAC from addressing the issue of affordable housing and making recommendations. She said she believes her proposed amendment is very inclusive.

Councilor McCaig said that Resolution No. 98-2629, as originally written, does not have enough support to be voted out of committee. She asked Councilor Washington if he would support Chair Naito’s proposed amendment at full Council.

Councilor Washington said he had not seen Chair Naito’s proposal until now. He said he needs to review the proposed amendment, and would like to discuss the proposed changes with the committee members.

Chair Naito said she would leave the matter in committee.

5.  ORDINANCE NO. 98-730, FOR THE PURPOSE OF AMENDING ORDINANCE NOS. 96-647C AND NO. 97-715B, TO AMEND TITLE 3 OF THE URBAN GROWTH MANAGEMENT FUNCTIONAL PLAN, AND AMEND REGIONAL FRAMEWORK PLAN, APPENDIX A, AND ADOPT THE TITLE 3 MODEL ORDINANCE AND WATER QUALITY AND FLOOD MANAGEMENT MAPS

Chair Naito opened a public hearing.

Anne Nickel, Columbia Corridor Association, Post Office Box 55651, Portland, submitted written testimony. A copy of her written testimony is included in the meeting record. She addressed the definition of wetlands and said she is concerned that Title 3 does not adequately clarify the definition of wetlands. She also recommended that Title 3 recognize approved Division of State Lands (DSL)/U.S. Army Corps of Engineers permits. The substance of Ms. Nickel’s comments is included in her written testimony.

Chair Naito said she intends to take public testimony at the committee meeting, discuss some of the proposed amendments, and then schedule a committee work session on Ordinance No. 98-730 on May 5 to address all of the proposed amendments. She said the proposed amendments to Ordinance No. 98-730 will be addressed before the Council public hearing on May 7.

Mike Houck, Coalition for a Livable Future, 5151 Northwest Cornell Road, Portland, addressed the issue of notification. He said Title 3 will be implemented at the local level, and each of the region’s 24 cities and three counties should give notice when they begin implementation of Title 3. He said it will be appropriate to give notice to property owners at that stage because by then it will be known how Title 3 will be applied in each of the jurisdictions. He said the question of significant wetlands comes into play through the Goal 5 planning process and through the regulatory process. He said Title 3 is neither a Goal 5 nor a DSL Fill-Removal and Federal Section 404 permit regulatory process. He said in actuality, local jurisdictions and the regional government have the prerogative to essentially put the U.S. Army Corps of Engineers and the Division of State Lands on notice that the metro region, for water quality (Goal 6) purposes, considers wetlands to be important for water quality maintenance. He said in his opinion, significance is irrelevant, as it relates to Title 3. He said he would elaborate on his views in a written response to Councilor Morissette’s proposed amendments.

Kelly Ross, Portland Home Builders Association, said he came to the meeting to talk about the wetlands definition and would follow up on Ms. Nickel’s comments. He said he has spent three years working on Goal 5 with the Land Conservation and Development Council (LCDC), the Department of Land Conservation and Development (DLCD) and others. He said in their work on Goal 5, and particularly on wetlands, they tried to avoid overlapping of government jurisdictions’ regulation of wetlands. He urged the committee to look at the Goal 5 definition of wetlands and compare it to the proposed definition in Title 10. He said it is a very low threshold of wetlands and could possibly take in an enormous amount of land. He questioned Metro staff analysis of Title 3’s impact on wetlands and on the buildable lands inventory. He said the Goal 5 requirement is only for local governments to show significant wetlands, and DSL went to great lengths to develop a special definition of significant wetlands for that purpose. He said he is also concerned about Title 3’s overlap with Goal 5 in the administrative rules. Mr. Ross said the Goal 5 administrative rules say that Goal 5 does not touch on Goals 6 and 7, except to the extent that any locally proposed rules for Goals 6 or 7 touch on Goal 5 resources and go beyond Goal 6 and 7 to protect those. He said Section 5 in Title 3, Wildlife Habitat, appears to be a clear case of a Goal 5 resource. He urged the committee to look at Section 5 because it recommends some temporary measures for local governments to take in the interim period between the development of the Section 5 mapping and model ordinance. He said the temporary measures appear to be contrary to Goal 5 in terms of allowable interim measures. He said he will submit written comments to the committee before its next work session.

Chair Naito thanked Ms. Nickel, Mr. Houck and Mr. Ross for their testimonies.

Brian Campbell, Planning Manager for the Port of Portland, said the Port of Portland has been involved in Title 3 discussions over the last couple of years through representation on the Water Resources Policy Advisory Committee (WRPAC), the Metro Technical Advisory Committee (MTAC) and other outside committees. He said the Port has had some concerns about specific aspects of Title 3 and has worked diligently with other groups to try to resolve many of those concerns at a variety of levels. He said the Port of Portland strongly supports the adoption of Title 3 and the accompanying maps. He said as with any extensive mapping exercise, there are bound to be discrepancies and errors, but the Port can work with the City of Portland to fix any mapping errors.

Chair Naito thanked Mr. Campbell for his testimony.

Doug Bollam, Post Office Box 1944, Lake Oswego, said he can look at the Title 3 map and immediately identify errors. He said public involvement in Title 3 is paramount and he questioned the extent of Metro’s public outreach effort. He said he is very concerned that there has not been broad representation of the people who will be affected by Title 3. He said he would like to be involved in the Title 3 work session. He asked Chair Naito if this is his last opportunity to submit testimony regarding Title 3.

Chair Naito said she will allow public testimony on Title 3 at the Growth Management Committee meeting on
May 4.

Mr. Bollam submitted written testimony from Daniel H. Kearns of Preston Gates & Ellis LLP. A copy of Mr. Bollam’s written testimony is included in the meeting record. Mr. Bollam asked the committee to use Mr. Kearn’s letter as a template during its work session on May 5. He said sometimes it is difficult for citizens to understand Title 3 because the level in certain areas is extremely complex. He said he wants to know that the public has been given the opportunity to have their dialogue heard, digested, and hopefully reflected in a good overall policy. He said he is only asking for equity.

Councilor McCaig asked Mr. Bollam if his issue concerning existing use was addressed by the Growth Management Committee at its last meeting.

Mr. Bollam said after the meeting, Ken Helm, Assistant Counsel, drafted language which for the most part addresses his concerns. He said his written testimony addresses his reservations about Mr. Helm’s proposed language.

Councilor McCaig asked Mr. Bollam if new information has come forward since the committee’s last meeting which has him concerned and which will be addressed before the committee as new information.

Mr. Bollam said yes. He commended Mr. Helm for partially addressing the issue.

Sandy Van Bemmel, Post Office Box 2626, Clackamas, said she originally attended the meeting to listen, but after reviewed the recommended changes, she felt she needed to speak. Ms. Van Bemmel said she is a Clackamas County citizen and has been working on Title 3 in her community for the past year. She said she has attended several open houses in Happy Valley and has assured citizens that Metro cares about water quality, wildlife, wetlands, floodplains, and livability. She said she feels tricked because after more than a year of trying to convince the public of Metro’s commitment to water quality, the issue of livability has been sacrificed for development interests.

Chair Naito asked Ms. Van Bemmel to which document she was speaking.

Michael Morrissey, Senior Council Analyst, said Ms. Van Bemmel was looking at the MPAC version and the changes that are in the MPAC version from the original Title 3 over a year ago.

Ms. Van Bemmel said she supports Title 3 as it stands and is against any revisions that may be presented as she is reading them. She said Rosemary Furfey, Senior Regional Planner, Growth Management Services, will attend a community planning organization in Clackamas County on May 5. Ms. Van Bemmel said she hopes the planning organization will have the opportunity to send comments to the Council following its meeting.

Councilor McCaig asked why the Councilors did not have a copy of the document from which Ms. Van Bemmel read.

Mr. Morrissey said Chair Naito had said she preferred to work from a clean document for the purposes of the committee meeting. He said the agenda packet contains the version of Title 3 that was first read in Council, which is a clean version of the MPAC recommendation. He said the MPAC strike-out version was included in the committee agenda packet at the last meeting, and additional copies were placed on the back table of the Council Chamber at this meeting to help interested citizens understand the changes that have taken place already. Mr. Morrissey offered to give Councilor McCaig a copy of the strike-out version of MPAC’s recommendations.

Councilor McCaig asked if Ms. Van Bemmel was working from less complete or current information.

Mr. Morrissey said the version used by Ms. Van Bemmel is as current and complete as the committee’s copy. He said the only difference is that Ms. Van Bemmel’s copy shows add/strike-out from the original version.

Chair Naito said there will be additional opportunities to testify at the committee meeting on May 5 and the Council meeting on May 7. She closed the public hearing. Chair Naito opened a work session and asked Mr. Helm to review his work on possible amendments to variances and the replacement/rehabilitation of dwellings. She said Councilor Morissette would have an opportunity to present his amendments at the end of the meeting.

Mr. Helm said the first issue is the replacement section of the revisions to Title 3 as recommended to the Council by MPAC, found on page six of Exhibit A in the agenda packet. He said Sections 1-4 and Sections 5-7 of Title 3 were divided into Exhibits A and B for clarity in adoption. He said the language pertaining to the definitions of the terms “addition,” “alteration,” “rehabilitation” and “replacement” begin on line 202 of Exhibit A.

Chair Naito asked Mr. Helm to frame the discussion in broader terms. She asked if the matter of replacement and rehabilitation of dwellings was omitted from the original document addressed by the committee at its last meeting.

Mr. Helm said yes. He said MPAC forwarded its recommendations for amendments to Title 3, and he sent the issue of replacement/rehabilitation back to MTAC for additional work. He said at MTAC’s meeting on April 9, it made a recommendation on how to address the issue of replacement dwellings. He said there has been considerable discussion in Metro’s advisory committees about the breadth of the term “replacement” and what local jurisdictions could possibly allow by using that term in Ordinance No. 98-730. He said one possibility is that replacement of existing dwellings could allow the replacement of an outbuilding or a shed that exists in a water quality resource area with something much more intensive, e.g. someone could replace a shed with a mansion. He said some policymakers felt uncomfortable with that possibility and they attempted to narrow the definition of “replacement” by allowing replacement of buildings that were destroyed by fire or natural disaster. He said Mr. Bollam and others did not agree with the new definition. Mr. Helm said MTAC took their concerns into consideration and made a recommendation to eliminate the definition of “replacement” and instead, require owners who want to make significant alternations, additions or replacements to existing structures in a water quality resource area to go through an alternatives analysis to demonstrate why there is no practical alternative to building in the water quality resource area. He said if it is determined that there are no practical alternatives to replacing the building in the water quality resource area, then the owner would be allowed to do so, but would also be required to mitigate in some way.

Chair Naito asked if MPAC will consider the matter at its Wednesday meeting. Mr. Helm said yes.

Chair Naito said the item is on the committee’s agenda for informational purposes, and the committee will not take action until it receives MPAC’s recommendations. She asked Mr. Helm to review the issue of variance.

Mr. Helm said the original version of Title 3 required local governments to adopt variance provisions to provide for hardships and map errors. He said the advisory committees, in looking again at the variance section, wanted to be especially careful about takings and providing a mechanism for local jurisdictions to avoid depriving owners of the economic uses of their properties when imposing the Title 3 regulated areas. He said the way in which MTAC, WRPAC, and MPAC decided to do that is located at line 166 of Exhibit A. He said it is a fairly flexible approach that allows local jurisdictions, under certain conditions, to fully or partially exempt development in the water quality area from the water quality resource performance standards. He said this is a performance standard, so the specifics of how the variance would work is not spelled out, but one of the guidelines is that local jurisdictions would be required to provide the maximum possible vegetative area while still allowing such a variance. Mr. Helm said the Office of General Counsel, in reviewing new information from Growth Management Services and considering the takings issue, has recommended to the committee to provide for a near-full exemption for 80 lots that Growth Management staff has identified in the metro region as fully inside the water quality resource area, which means in all likelihood, no new development would be allowed on those parcels. He said those are very juicy facts for takings litigation, and the Office of General Counsel’s position is that to be most certain and to have a good position for deterring takings claims, the Council could take those 80 parcels off the table from the beginning while still requiring erosion control if the parcels are developed.

Chair Naito said this may be a policy issue which the committee will want to discuss. She said Mr. Helm’s original memo to the committee said the existing language is probably adequate. She asked Mr. Helm if that was correct.

Mr. Helm said yes. He said it is hard to anticipate the myriad ways in which jurisdictions might implement Title 3, making it difficult to predict potential pitfalls. He said the Office of General Counsel is giving the committee an option for additional safety.

Councilor McCaig said she was surprised by the Office of General Counsel’s recommendation. She said the recommendation seems to create a new degree of uncertainty and creates the impression that unless the Council adopts legal counsel’s recommendation on variances, Metro will be subject to legal suits. She asked Mr. Helm to explain legal counsel’s recommendation to adopt a different standard.

Mr. Helm said one reason for legal counsel’s recommendation is that since MPAC sent its recommendation to the committee, it also discussed the issue of Metro participating in the defense of any constitutional claims. He said at that time, Metro’s participation was linked to defense of the model ordinance that will implement Title 3. He said the concept of Metro aiding in legal defense of the model ordinance has moved to an overall concept to be applied throughout the Urban Growth Management Functional Plan (Functional Plan) through Title 8. He said that while it has always been implied that Metro would stand by its regional partners, Metro’s discussion of participating in the defense of unconstitutional claims ups the ante for takings. He said therefore, legal counsel is recommending to the committee an additional level of safety.

Councilor McCaig asked whether those 80 parcels of land could be developed if the exemption was done and the 80 parcels of land were not included.

Mr. Helm said yes, the parcels could be developed to the minimum level of one building site. He said legal counsel has researched other areas in the nation and the only similar instance it has found is a watershed in Maine in which there are restrictions analogous to Title 3. He said in cases in which the local jurisdiction in the Maine watershed determines that a taking would occur if its watershed provisions were implemented, it allows one single-family dwelling to give the property owner some economically viable use of the property.

Chair Naito asked Ms. Furfey to give the committee a brief outline of some of the issues on the maps. She said MPAC is also considering these issues, therefore the committee did not need a detailed presentation at this time.

Ms. Furfey gave a quick update on the maps and the status of Title 3 documents in Metro’s committees. She presented the Title 3 map to the committee; a copy of the maps may be found in the Council’s permanent record. She said staff has worked for the past year and a half with local jurisdictions and special interest groups to develop the map. She said MTAC and WRPAC have voted the Title 3 map out of their respective committees and it will be considered by MPAC on April 22. Ms. Furfey distributed copies of the WRPAC/MTAC draft of the Title 3 Model Ordinance, which consolidates the changes from both committees into one document. A copy of the Title 3 Model Ordinance: WRPAC/MTAC Draft - 4/20/98 is included in the meeting record.

Chair Naito thanked Ms. Furfey for her presentation.

Councilor Morissette said he believes that Title 3 will affect many people; he has heard figures ranging from 34,000 to 40,000 households. He said he thinks there was an agreement in the Growth Management Committee to give timely notification to people who may be affected by new regulations. He said property owners may have opinions about how Title 3 regulations affect their properties. He asked Ms. Furfey for the list of 34,000 people who will be affected by Title 3 so that if the Council does not do the right thing, he has the opportunity to try to do the right thing in another format.

Councilor McCaig said Ms. Furfey should charge Councilor Morissette for the list.

Councilor Morissette said he would be happy to pay the cost for the list. He said he wants to be sure that Metro contacts property owners so that the Council is making decisions that are clearly understood by the people whose properties will be affected. He said he feels very passionately about this issue.

Councilor McLain asked if Councilor Morissette will be mailing his personal interpretation of Title 3 to the 34,000 people on the list.

Councilor Morissette said no, he wants to make sure that if the Council’s actions are impacting people, he knows who those people are. Councilor McLain asked Councilor Morissette if he was saying that he would not do a private mailing. Councilor Morissette said he did not say he would not do a private mailing.

Chair Naito said if Metro has such a list, Councilor Morissette is entitled to it under the Freedom of Information Act.

Councilor Morissette said it is important to protect both the environment and people’s rights. He said most of the hills, in one form or another, lead to a stream more quickly than a lot of the flat land. He said he believes that imbedded in some of the requirements without more flexibility placed into Title 3, the Council will end up meeting itself right back where it began, and it will be in conflict with one of the very goals it also stated it wanted to protect, namely farmland. He said the farmlands are the easiest place in large parcels to mitigate the wetlands that the Council is discussing as it moves forward. He said if Title 3 is overly aggressive to meet State goals, and he believes it is, Metro will end up with a situation in which the only thing Metro is able to use is farmland. He said there is an alternative to the goals here that is equally distasteful to the Council. He said it is difficult to balance all of the choices so that the Council does not run from one bad situation to another. He said it is important to notify the people who will be affected by Title 3 before it goes to the local level. He said he is surprised the number of affected people is so high.

Councilor Morissette reviewed his proposed amendments. A copy of his proposed amendments to Title 3 and the Model Ordinance is included in the meeting record. He said there are many aspects of Title 3 which he would like to modify. He said he is not proposing a number of amendments in the thought of bringing something balanced to the committee that would be considered for adoption. Councilor Morissette said he would review his Model Ordinance Amendment No. 1 at a later date, as legal counsel is working on amendments to subdivisions and partitions. He said his amendments are intended to give Title 3 flexibility that makes sense because failure to give more flexibility to Title 3 will put more development pressure on lands that do meet water quality standards, such as prime agricultural land. He said the Council needs to maximize the value and the infrastructure in the region. He said failure to do so will make taxpayers pay a lot more for future growth, which he knows is not popular, and resource land of another type will have to be used to solve the problems. Councilor Morissette said he hopes Title 3 is an attempt to protect the environment and not a no-growth tool. Councilor Morissette said is proposing his Amendment No. 4 on the definition of “development” because he believes it is unfair to exempt farm use inside the urban growth boundary (UGB) from Title 3 regulations. He said the goal is to be fair, and it would be wrong of the Council to produce something that was not fair. He asked Mr. Cooper when the Title 3 requirements will go into an implementation mode.

Mr. Cooper said the implementation timeline is in the body of the ordinance itself. He directed Councilor Morissette’s attention to Ordinance No. 98-730, Section 5, which states that cities and counties are required to comply with Title 3, Sections 1-4 within 18 months of the adoption of the ordinance. He said the timeline for Section 5, Fish and Wildlife Habitat Conservation Area, is stated Exhibit B, beginning on line 106.

Councilor Morissette asked if the deadline is 18 months from LDCD’s acknowledgment of the Council’s action.

Mr. Cooper said the deadline is calculated from the adoption of the Functional Plan. He said the Functional Plan becomes a requirement for local governments to amend their comprehensive plans upon the effective date. He said if local governments do not amend their comprehensive plans or take action that is inconsistent with the Functional Plan, it is appealable to LUBA. He said it does not come back to the Council for review of approval, it simply becomes a land use planning requirement local jurisdictions have to meet. Mr. Cooper said the process is just like it was when the Council adopted the Functional Plan in November 1996: the ordinance went into effect in February 1997 and included a requirement in Title 1 that the cities and counties submit their compliance plans to the Council by August 1998, and meet the requirements by two years after the adoption of the ordinance, which will be October 1999. He said Title 3 sets up a similar time frame that is 18 months after the ordinance is adopted.

Councilor Morissette said what the Council is doing in the process of the Functional Plan, once final action is taken or upon approval of this, is an appealable event. Mr. Cooper agreed that it is an appealable event. Councilor Morissette said the 18 months starts upon the resolution of an appeal or a court action.

Mr. Cooper said that is not necessarily true. He said if Title 3 is appealed and the appeal is resolved, the original applicability date would still be in effect. He said if the ordinance is amended, the situation would be different. He said if Title 3 is adopted with an 18 month effective date and it is appealed to LUBA as a land use decision, a local government that did not amend its regulations or took an action inconsistent with it, after the 18 month deadline, would be vulnerable to a separate appeal for having not complied. He said if the first appeal is resolved in favor of the version adopted by the Council, the court action would control the subsequent appeal and leave the city that did not comply with it vulnerable. He said that fact that Title 3 may be appealed does not act as a good stay of the effective date.

Councilor Morissette thanked Mr. Cooper and the committee members. He said if the goal of Title 3 is solving the problem, more flexibility will help and will secure more support.

Councilor McLain thanked Councilor Morissette for meeting with Councilors independently before the committee meeting. She said there are some people, such as herself, who feel that the flexibility proposed by Councilor Morissette is so large that a semi-truck could be driven through it. She said the debate will focus on what kind of flexibility is going to offer the most protection of water quality and flood mitigation but still allow local jurisdictions their own creative solutions.

Vice Chair McCaig said she understands that the May 5 Growth Management Committee meeting is scheduled to be a work session at which time the committee will take up every amendment that has come before the committee. She said the meeting is not scheduled to be a public hearing, however, Chair Naito will allow testimony. She recommended that anyone who wishes to testify prepare written testimony and submit it to the committee members at least 48 hours before the meeting so that Councilors have an opportunity to read and incorporate the recommendations. She said the item of enforcement, Title 8, will be carried over to the May 5 meeting.

Mr. Houck asked if it is likely that there will be any additional Councilor amendments.

Vice Chair McCaig said it is appropriate to assume there will be further amendments. She said there may also be another round of amendments when Ordinance No. 98-730 reaches the full Council. She said a series of public hearings has been scheduled. She said the Council meeting on May 7 will be a public hearing, at which point Councilors should be asked to make their amendments known.

Councilor Morissette said he if proposes additional amendments, he will do his best to give Mr. Houck advance notice.

6.  COUNCILOR COMMUNICATIONS

There were none.

There being no further business before the committee, Vice Chair McCaig adjourned the meeting at 3:10 P.M.

Respectfully submitted,

Suzanne Myers

Council Assistant

i:\minutes\1998\grwthmgt\04218gmm.doc

ATTACHMENTS TO THE PUBLIC RECORD FOR THE MEETING OF APRIL 7, 1998

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

(continued)

Oral Testifiers (testimony cards included)

Urban Reserve Status Report

Lee D. Leighton

Marc Butorac

Ordinance No. 98-730

Anne Nickel

Mike Houck

Kelly Ross

Brian Campbell

Doug Bollam

Sandy Van Bemmel