METRO COUNCIL GROWTH MANAGEMENT COMMITTEE

Tuesday, May 5, 1998

Council Chamber

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

Members Absent:    None

Also Present:    Susan McLain, Ruth McFarland

Chair Naito called the meeting to order at 1:39 P.M.

1.  CONSIDERATION OF THE APRIL 21, 1998, GROWTH MANAGEMENT COMMITTEE MEETING MINUTES

2.    FOREST GROVE COMPLIANCE PLAN

Ray Valone, Growth Management Senior Program Supervisor, presented the Forest Grove Compliance Plan. A copy of the Forest Grove Compliance Plan Assistance Report is included in the meeting record. He said based on Forest Grove’s capacity for existing planning and zoning, it will fall short of its housing goal by 1,035 units, and fall short of its employment target by 753 jobs. He said staff looked at redevelopment opportunity, and the city has capacity for existing dwelling units of almost 400 for redevelopment lands and over 700 jobs. He said ultimately the redevelopment capacity will be determined by the City of Forest Grove. He said the city has adopted a town center plan, defined the boundaries, and has received a Transportation and Growth Management (TGM) grant to implement the plan. He said staff expects the city will be able to gain capacity in the town center as well as in the corridor through the city. He said Forest Grove has been working towards implementation and has a minimum density requirement in its single family districts. He said Karl Mawson, Forest Grove Community Development Director, said the city plans to complete a rewrite of its code by January 1999; the rewrite will include implementation of the Urban Growth Management Functional Plan (Functional Plan) requirements, including minimum density on multi-family housing and parking requirements. He said Title 6 of the Functional Plan will be implemented through the city’s transportation system plan, which it has received another TGM grant to complete this year.

Mr. Valone offered to answer any questions from the committee. There were none.

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

Chair Naito pulled Resolution No. 98-2629 from the agenda at the request of Councilor Ed Washington.

4.  RESOLUTION NO. 98-2636, FOR THE PURPOSE OF CONFIRMING THE SELECTION OF FIRST CHAIRPERSON AND VICE-CHAIR FOR THE NATURAL HAZARDS TECHNICAL ADVISORY COMMITTEE, AND APPOINTING A HOME BUILDER DELEGATE TO THE COMMITTEE

Gerry Uba, Natural Hazards Mitigation Senior Program Supervisor, presented the resolution. He reviewed the qualifications and extensive Metro involvement of the nominee to chair, Edward Trompke. Mr. Uba said Mr. Trompke’s appointment will be very helpful to Metro. He reviewed the qualifications of the nominee for the home builder position, John Godsey.

Councilor Morissette said he wholeheartedly supports both nominations.

Chair Naito asked for questions or discussion from the committee. There was none.

Councilor Morissette will carry Resolution No. 98-2636 to the full Metro Council.

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 said the committee would move forward with as many proposed amendments to Ordinance No. 98-730 as possible. She said there is one outstanding issue on wetlands with respect to the maps and the language, which has become controversial and needs more work. She said she plans to set a special committee meeting on May 28 at 2:30 P.M., after Councilors Morissette and McCaig have returned from their travels, to address the wetlands and any other outstanding issues. Chair Naito distributed a copy of her script for Ordinance No. 98-730 to members of the committee. A copy of the script is included in the meeting record.

Chair Naito opened a public hearing at 1:48 P.M.

Amanda Fritz, 4106 Southwest Vacuna Street, Portland, said she came to speak to the issue of whether the map can prevail over the language, with respect to wetlands. She said the current language in Exhibit A could allow the map to prevail, which would not work because once a development application is granted, the map error is grandfathered in, and there is no way to correct the error. She said as similar situation has occurred in the City of Portland with its environmental zones (E zones). She said she feels passionately that the language protects the actual features. She said she supports Title 3.

Rich Rodgers, staff for Portland City Commissioner Erik Sten, said he is Commissioner Sten’s liaison to the Bureau of Environmental Services, where they are also working on similar water issues. He commended the Council for its work on Title 3. He said he had spent the day listening to presentations about the effects of steelhead trout’s listing as an endangered species. He said Title 3 is a good first step toward building protecting the region’s fish populations, but there is much more work to be done. He said it would be difficult to over-exaggerate the extent of activities that will be affected by the steelhead listing. He said Title 3 is an important first step in addressing protection of floodplains, wetlands, and stream corridors, but it is relatively silent on what happens to rain when it lands in the upper regions of a watershed before it makes its way to a stream. He urged the committee to be as conservative as possible in protecting water resources, and to recognize that the region will probably be asked to do more than is laid out in Title 3.

Mr. Rodgers said it appears the committee is working on a compromise on notification of property owners, and he is hopeful that notification can work. He said the City of Portland recently adopted regulations for the Johnson Creek floodplain and sent out notification to 2,200 people. He said the city feels it gave citizens ample time to comment, but said it would be good to give those citizens an opportunity to come back to Metro. He said the city would probably testify in support of expanding the definition of development to include farmland. He said it will be important to recognize rural area’s role in water quality.

Mike Houck, Audubon Society of Portland and Coalition for a Livable Future’s Natural Resources Working Group, said he has submitted a detailed discussion of the Audubon’s position on the proposed amendments. A copy of the letter from Mr. Houck to Chair Naito is included in the meeting record. In his testimony, Mr. Houck cited a memo from Executive Officer Burton to Chair Naito, dated May 4, 1998. A copy of the memo is included in the meeting record. He said it is not common knowledge that those who are arguing for flexibility have said that they want flexibility to pursue engineered solutions to water quality, rather than protect vegetated corridors and floodplains. He said that idea is absolutely contrary to the philosophy and intent of Title 3. He said the region needs to do both: it needs to protect natural corridors for their natural, multiple functions and values, and it needs to engage in engineered solutions when necessary to address the built environment. He said the flexibility language is unacceptable to his organization. He asked the committee to review his written response and discuss the matter further. He said the Department of Fish and Wildlife has addressed Ms. Fritz’s concern about the map prevailing over the language. A copy of the letter, addressed to Presiding Officer Jon Kvistad and dated May 1, 1998, is attached to the letter from the Audubon Society of Portland and included in the meeting record. He said there is a lack of consistency between people’s statements about the need for cooperation at the Willamette Basin level and within the Portland metropolitan region, and some of the proposals that would weaken an already marginal Title 3. He said Metro has already acknowledged that it will address storm water management, Goal 5 and watershed planning in the future. He said Metro is working at the bare minimum, and as unreasonable as that may seem or sound to an outsider, he feels that further compromising Title 3 will render it unable to have a positive impact on water quality and steelhead recovery in the region’s streams. He told Councilor Morissette that he tried very hard to find an amendment which he could support, but was unable to do so.

Councilor McCaig said Mr. Houck has written comments to many of the MPAC amendments which Chair Naito is sponsoring. She asked Mr. Houck if he had an opportunity to make his arguement at MPAC.

Mr. Houck said some of the issues, such as wetlands, have not been discussed at MPAC. He said it can be difficult to give substantive input in MPAC.

Councilor McCaig asked if the committee will vote on Chair Naito’s amendments today. Chair Naito said yes. Councilor McCaig asked if Chair Naito could alert the committee to amendments which pertain to policy decisions and deserve more committee attention than technical amendments.

Chair Naito said the committee can invite testimony on each amendment, and Mr. Houck or others can speak to the amendments if interested.

Linda Bauer, Pleasant Valley Neighborhood Association, 6232 Southeast 158th, Portland, said she agrees with Ms. Fritz and Mr. Houck. She said her neighborhood association heard a presentation on Title 3 three months ago and supported the language at that time. She said her neighborhood association believes that Title 3 is long overdue, and asked the committee to shorten the implementation time from 18 months to 6 months.

Daniel Kearns, Preston Gates and Ellis LLP, representing Douglas Bollam, spoke to Councilor Naito Amendments Nos. 1 and 5, which reflect language proposed by Mr. Bollam. He said the language pertains to non-conforming uses, and is not intended to be used as the basis for a denial of a request for modification of a non-conforming use. He said he and Mr. Bollam are concerned that the Council is cognizant of the existing property rights of non-conforming uses as it promotes Title 3’s conservation efforts.

Chair Naito asked Mr. Kearns if he supports Councilor Naito Amendment No. 1 as written. Mr. Kearns said he supports it as written, but he wants to clarify that Councilor Naito Amendment No. 5 is a section to be inserted into the Model Ordinance, which essentially tells an applicant what information needs to be submitted with an application to modify a non-conforming use so that the applicant may craft the necessary conditions to mitigate the impacts according to Title 3 standards.

Sue Marshall, Tualatin Riverkeepers, said her organization has over 500 members in the Tualatin Basin, and for over a decade, it has promoted citizen stewardship to protect and restore the Tualatin Basin. She said Tualatin Riverkeepers is also an organizational member of the Coalition for a Livable Future. She said Tualatin Riverkeepers supports Title 3 and the Coalition’s positions regarding the proposed amendments. She said Tualatin Riverkeepers is adamantly opposed to the amendment to allow cities and counties to adopt alternative standards, because it believes the amendment would undermine the purpose of a regional-based ordinance. She said the Tualatin Riverkeepers believe the water quality achievements in the Tualatin Basin were achieved through strong regulatory efforts, including the Clean Water Act. She applauded the Council’s efforts and encouraged the committee to get Title 3 out to the local jurisdictions.

Chair Naito closed the public hearing at 2:10 P.M.

Councilor Morissette said he has some concerns about Title 3. He said the goal of trying to protect the rivers is important, but it is also incumbent upon the Council to realize that some of the requirements in Title 3 are the wrong approach. He said to a larger extent he is concerned about the current lack of effort to let people know what Title 3 will do to their property. He read from a prepared statement, a copy of which is included in the meeting record. He added that his problem with the current proposal is that it is more than just a proposal for a model, it is prescriptive when it talks about doubling and tripling the setbacks. He said there will be people adversely affected by Title 3 who are not paying attention to Metro’s actions. He said he understands that there will be some discussion about some proposals as the committee moves forward, and he welcomes those opportunities. He asked the committee to remember that Metro can accomplish the goals without being as prescriptive as Title 3. He said he believes this because he has done so on his own property and has managed a flood mitigation plan for five years. He said he understands Mr. Houck’s concerns that the regulations will be diluted in implementation, but some of those are so that people continue to support the very needs of the region. He said in response to Mr. Rodger’s comment that the region may face additional regulations due to the steelhead listing, the Council should wait and see what those regulations will be. He said right now the region needs flexibility.

Chair Naito began the committee work session on Ordinance No. 98-730.

Mr. Helm reviewed the Office of General Counsel Amendment No. 1 to the cover ordinance. He said it is a housekeeping amendment to clarify the Council’s intent to only amend those sections of Title 3 that pertain to water quality and flood management. He said the amendment also clarifies that some of the issues relating to wildlife habitat in Section 5 of Title 3 will be addressed at a later date.

Chair Naito introduced Councilor Naito Amendment No. 1. She said the amendment came from MPAC and concerns the replacement of buildings and a process for an alternative analysis of how the proposed addition would qualify for a variance.

Councilor McCaig said Mr. Houck has recommended that the Council delete the word “reasonably” in the amendment. She asked Mr. Houck to explain his recommendation.

Chair Naito asked Mr. Houck and Mr. Kearns to come forward to answer committee questions.

Mr. Houck said when he made his case at MPAC, he argued for the word “practicable” rather than “reasonable” because “practicable” is used elsewhere in Title 3 and is defined.

Councilor McCaig said she would not move Mr. Houck’s recommendation because it had been heard at MPAC.

Councilor Morissette said his amendment addresses the need for more flexibility in Title 3. He recommended reducing the setback requirements on slopes equal to or greater than 25%, if the slope is proven to be stable. He responded to a letter from Executive Officer Burton to Chair Naito, dated April 29, 1998, in which Executive Officer Burton refers to a recent example of slope instability on the Oregon Coast. A copy of the letter is included in the meeting record. Councilor Morissette said he found Executive Officer Burton’s reference to the Capes development on the Oregon Coast frustrating, because it is still not clear whether the developer’s actions were inappropriate, or if it was an act of God. Councilor Morissette concluded that there are always ever-changing abilities to accomplish goals.

Councilor McCaig added that she wants to be sure that simplifying Table 1 will not omit any pertinent information regarding protection issues. She said secondly, the footnote component may need more work on definitions. She said neither concern should delay a vote on the amendment.

Chair Naito said her intent is to make the table consistent with the Model Ordinance.

Councilor Morissette said Chair Naito’s amendment allows more flexibility, which he firmly supports.

Chair Naito asked Mr. Helm for an explanation of Councilor Naito Amendment No. 3. A copy of Councilor Naito Amendment No. 3 with an expanded explanation is included in the meeting record. She said the amendment came from MPAC.

Mr. Helm said the amendment is an issue which MPAC considered, and reflects MPAC’s concern that allowing jurisdictions to exempt certain activities in the water quality resource area from Title 3 performance standards would allow property owners to clear cut their lands. He said MPAC’s intent was to provide a limited exemption for those activities that otherwise would not require a building or grading permit, primarily to place a structure. He said Councilor Naito Amendment No. 3 could be stated more clearly, and said the Office of General Counsel, at the committee’s direction, would be happy to do additional work on the language.

Chair Naito directed legal counsel to work on language that would further clarify the amendment. She said the committee would address the amendment at its next meeting.

Councilor Morissette said this amendment concerns flexibility on the setbacks. He said there are a number of subdivisions in which good stream corridor work was done, but with buffers that are significantly smaller than those proposed in Title 3. He said the Metro Council needs to honor existing agreements, which would lessen many people’s concerns while still protecting the watershed. He said the wetland mitigation plans that have been developed under one set of circumstances could be made invalid by Title 3. He said Title 3 needs more flexibility as long as the goals and intent of Title 3 is honored.

Councilor McCaig said Executive Officer Burton responded to Councilor Morissette Amendment No. 2 in his April 29, 1998, letter. She asked Chair Naito if it would be helpful to hear a contrasting case for the record.

Chair Naito asked Ms. Wilkerson to review Executive Officer Burton’s response to Councilor Morissette Amendment No. 2.

Ms. Wilkerson said Executive Officer Burton suggested that the exemption as proposed would not provide a means of differentiating between those existing requirements that substantially comply with the performance standards of Title 3 and those that do not. She said she would prefer that, rather than granting an exemption, a site be considered on its merits to ensure that the area is properly protected. She said in some cases it would not be onerous; in other cases it may require a variance.

Councilor Morissette said he asked Mr. Helm to do a basic review of what can and cannot be done in the vegetated corridors. He said his conversation with Mr. Helm yesterday indicated that a property owner would be required to get a variance to replant his lawn if it died, because grass is non-native vegetation. He said he believes Title 3 is too aggressive. He said he wants the Council to honor existing agreements and allow flexibility. He said in creating different wetlands, it is difficult for someone to determine the requirements: in some cases a fence is required, in others a fence is considered an amenity to a project. He said he has seen interpretations of these requirements that, in his opinion, went against the intent.

Councilor McLain asked staff to respond. She said in her meeting with Councilor Morissette yesterday, staff pointed out other places in Ordinance No. 98-730 which allow for routine repair and maintenance. She said there is individual flexibility in Title 3 that allows for existing uses if the property owner is not trying to develop in the water quality resource area.

Councilor Morissette asked Mr. Helm if a garden may be planted in a buffer. Mr. Helm said the original version of the Model Ordinance approved by WRPAC indicates that gardens would be prohibited in the water quality resource area, without some sort of exception.

Councilor Morissette said based on personal experience, he can say that it would be difficult to receive such a variance. He asked Mr. Helm if Title 3 would allow a property owner to till and replant grass which had died. Mr. Helm said he would be more comfortable answering Councilor Morissette’s questions in a memo after further analyzing the issue.

Councilor Morissette said he can assure the committee that, as some people would read the regulations, those types of activities would be restricted. He said he thinks that is a problem.

Councilor McLain said she believes that people will be allowed to tend to their lawns in a reasonable fashion. She said gardens that are not replanted immediately after harvesting will become plots of mud in the winter, which would not protect the streams.

Councilor Morissette said the point is not erosion but land use. Councilor McLain disagreed.

Councilor McLain asked staff to highlight the places in Title 3 which allow for flexibility.

Ms. Wilkerson said line 162 of Exhibit A specifies that the performance standards do not apply to routine repair and maintenance of existing structures, roadways, driveways, utilities, accessory uses and other development. She said uses other than development are not regulated in any case, and development is specified to have a threshold of 10% removal of vegetation in the water quality resource area on the lot. She said therefore, grass maintenance is probably not an issue if it is an existing use.

Councilor Morissette said it would be an existing use until the grass died. Ms. Wilkerson said that after the grass died, it would be routine repair and maintenance.

Mr. Houck said he is concerned about Councilor Morissette Amendment No. 2 because it essentially argues for the status quo. He said there is no intent in Title 3 to prevent people from managing their existing grass. He said he does not want to see further encroachment into the vegetated corridor.

Councilor Morissette said his amendment speaks to more than grass and gardens, although he believes further study will determine that they would be affected. He said the Council needs to honor existing efforts to protect water quality. He said it is possible to honor existing commitments without hurting the watershed or the fish.

Councilor McLain said she and staff tried to address Councilor Morissette’s comments during informal conversation yesterday. She said that as the committee begins its discussion on the wetlands definition and timing of when Title 3 becomes law, it will be possible to talk about existing permits and existing work that is on the ground. She said she does not believe existing permits and work are a part of this particular amendment. She asked Councilor Morissette to explain the connection.

Councilor Morissette said he would not have made the amendment if he had not believed that it was necessary.

There was no objection from the committee.

Councilor Morissette read the latest version of Councilor Morissette Amendment No. 3. A copy of Councilor Morissette Amendment No. 3, dated May 5, 1998, is included in the meeting record.

Chair Naito asked if it would be appropriate to address this amendment at the next committee meeting which will focus on wetlands.

Councilor McCaig said as she understands it, this amendment does not concern which wetlands will be filled, instead it honors existing permits. She said the committee may be able to vote on the amendment now.

Councilor Morissette agreed. He said he will propose further language that will try to delineate different types of wetlands. He said the strict requirements of Ordinance No. 98-730 will prevent development of hills and will force growth into farmland.

Councilor McCaig asked Ms. Wilkerson or Councilor Morissette to confirm if her understanding is correct. She said a limited number of permits have been granted, each of which has a lifetime of two or three years. She said Councilor Morissette Amendment No. 3 would allow current permit holders to fulfill the conditions of their permits, essentially creating a grandfather clause. She said after Title 3 is adopted, permits which are inconsistent with Title 3 will no longer be granted.

Councilor Morissette said his amendment does more than that. He said local governments have 18 months to implement Title 3, so there is the possibility for additional permit applications.

Chair Naito asked about permits granted to wetlands that were inadvertently omitted from the Title 3 maps.

Ms. Wilkerson said the amendment would allow permits to be issued, subject to the State’s considerations, until the date of the amendment that would follow. She said that could be 18 months after the Council’s adoption of the Model Ordinance. She said the committee may want to consider linking Councilor Morissette’s amendment to the Council’s adoption of Title 3. She said staff has amended the maps as much as possible based on the permitting that has been done, and she is not sure how the State would respond during the period between the local adoption and Metro’s changes. She said the maps are there to show some reflection of wetlands in the meantime.

Mr. Houck said he would not object to an amendment that would grandfather in permits which were applied for and received in the past. He said the problem with Councilor Morissette’s amendment is that it allows up to 18 months for additional permits to be granted. He said an amendment which recognized permits granted before the Council’s adoption of Title 3 would send a message to the Department of State Lands (DSL) and the U.S. Army Corps of Engineers that Metro considers these resources to be significant, and by law they must take that into account when reviewing permit applications.

Councilor McCaig said she would not support Councilor Morissette Amendment No. 3 as written. She suggested a friendly amendment to read “. . . issued prior to the adoption of the Model Ordinance by the Metro Council.” She said she is comfortable grandfathering people in, however she is not comfortable creating a stampede on the process for the next 18 months while local jurisdictions go through their own processes.

Councilor Morissette said Metro is implementing language for Title 3 that does not become a regulation on local jurisdictions until there is a process. He said the Council’s action on Title 3 does not create law; it creates law when the local governments implement that law. He asked Mr. Helm if the State requires Metro to honor existing commitments.

Mr. Helm said Councilor Morissette is correct, to an extent. He said the effect of the friendly amendment would be a statement that Metro considers the window to be closed on new permits, and local jurisdictions would be expected to make comprehensive plan and zoning ordinance decisions that are consistent with the Functional Plan, after the time that Functional Plan provisions become effective.

Councilor McLain said state Fill-Removal and/or federal Section 404 permits are valid for one to three years, and can be extended for a number of different reasons. She said the friendly amendment would make a statement that the Council understands that permits have been granted, but feels that Title 3 should be taken into consideration in the review of any future permit applications.

Chair Naito asked Councilor Morissette if he accepted the friendly amendment.

Councilor Morissette said he could not accept the friendly amendment because it is connected to the issue of notification. He said he believes many people will be upset with the lack of availability of their land. He said he does not believe staff’s assertion that all of the habitat areas have been removed from the buildable lands survey. He said he believes a substantial amount of buildable lands will fall into the definition of insignificant wetlands and will no longer be buildable, either economically or because mitigation would be prohibitive. He said he does not believe that Ordinance No. 98-730 can require local governments to immediately fall within its guidelines. He said he would prefer to see his amendment fail than include a more stringent time frame.

Councilor McCaig said the committee can vote down the amendment and decide later whether to bring another amendment to the full Council that would address the issue.

Councilor Morissette said Councilor Morissette Amendment No. 6 concerns flexibility. He said the City of Hillsboro has said it supports this amendment.

There was no committee discussion.

Chair Naito said there are no proposed amendments to Exhibit B. She moved to amendments to Exhibit C, the Model Ordinance.

Councilor McCaig said Councilor Naito Amendment No. 4, to replace the staff version of the Model Ordinance with the MPAC version, should have included a table of contents and appendix, which were inadvertently omitted from the amendment packet.

Chair Naito said her amendment includes the housekeeping portion regarding the table of contents and appendix, but the purpose of the amendment is to move the amended MPAC April 22, 1998, Model Ordinance.

Councilor Morissette asked for a brief description of the amendment.

Mr. Helm said Exhibit C is the Model Ordinance to implement Title 3. He said the staff version of the Model Ordinance was included in the committee’s last agenda packet, and also in the packet that was first read in Council. He said both MPAC and WRPAC subsequently reviewed the Model Ordinance and made comments. He said the MPAC version in Councilor Naito Amendment No. 4 incorporates the comments of the advisory committees and sets a baseline Model Ordinance from which the Council can work. He said the MPAC version of the Model Ordinance needs to be amended into Ordinance No. 98-730.

Councilor Morissette said Councilor McLain has an amendment which he supports. He asked if Councilor McLain could present her amendment before the committee moves on the amendments to Exhibit C.

Councilor McLain said Councilor Morissette and others have stated an interest in public notification of Title 3. She said she has drafted an amendment which would address Councilor Morissette’s concerns and, in her opinion, do nothing more than restate Title 8 in the Functional Plan as it relates to Title 3. She said at the committee’s request, she would bring her amendment to the next committee meeting. Councilor McLain read her amendment:

The Metro Council shall consider any requests for exceptions to the Water Quality and Flood Management Area Map in Title 3 after local jurisdictions give public notice of changes to implement Title 3 performance standards.

She said her amendment restates Title 8, which applies to all Functional Plan elements: local jurisdictions, as well as local citizens if they have been through the public hearing process at the local jurisdictional level, may bring issues to the Metro Council to reconsider. She said her amendment also indicates that the Council wants local jurisdictions to give public notice as they start to implement Title 3.

Chair Naito said the Executive Officer also has some proposed amendments for how Metro can help local jurisdictions with notification. She said that with the committee’s agreement, she would like Councilor McLain and the Executive Officer to write up their respective amendments and bring them to the next committee meeting.

Councilor McLain said she would be happy to do so. She said she has read Executive Officer Burton’s draft amendments, and nothing in her amendment would be counteractive to his work.

Councilor Morissette said he and Mr. Helm have debated the difference between legal requirements and people’s expectations. He said he agrees with Mr. Rodger’s testimony that increased public involvement yields a better product. He said he wants to create an atmosphere that allows a positive review, because he believes that the public is unaware of what the Council is doing to their properties.

Chair Naito said she will schedule Councilor McLain’s amendment for the next committee meeting. She asked Councilor McLain to formally write up the amendment and distribute it for comment.

Councilor Morissette presented Councilor Morissette Amendment No. 1 to Exhibit C. He said the word “optional” removes the Council’s responsibility for what he believes is clearly a takings. He said the reason given for Section 5 of the Model Ordinance is that it provides local jurisdictions with an example of what to do. He said the Council should not encourage local jurisdictions to do the wrong thing by having an inappropriate example in the ordinance.

Chair Naito asked legal counsel why Section 5 should be included in Exhibit C.

Mr. Helm said it is a policy decision for the committee and Council to include these types of provisions. He said this provision implements a section of Title 3 itself that encourages local jurisdictions to require or seek dedications or conservation easements. He said within the language suggested for the Model Ordinance are further options that allow ownership to stay with the original owner in various capacities. He said from a legal perspective, he does not believe that this section gets the Council or the local jurisdictions in trouble with a takings problem.

Chair Naito asked staff for its position on why Section 5 should be included.

Ms. Wilkerson said the purpose of Section 5 is to show local jurisdictions how they could implement that particular part of the title. She said if the Council does not actually propose language, it will not be considered. She said Section 5 gives local jurisdictions one option, and they can decide whether to insert the language in their codes or not.

Councilor McLain said Section 5 gives flexibility, as both WRPAC and MPAC recognized. She said she agrees with Ms. Wilkerson that this is an opportunity to demonstrate some different types of good examples. She said she hopes the committee will vote to keep the language.

Councilor Morissette presented the amendment. He said his proposed amendment allows people to continue to use their properties.

Chair Naito asked for committee discussion. There was none.

Mr. Houck said the problem with the amendment is that changing the language “5,000 feet” to “the minimum area necessary,” removes all limits on development.

Councilor Morissette said it is important to be careful, because the government cannot take too much from people’s values before it is a takings.

Chair Naito said she would carry over Councilor Morissette Amendment No. 3 to Exhibit C and Councilor Morissette Amendment No. 4 to Exhibit C to the meeting on May 28, at which time the committee will focus on wetlands.

Chair Naito said her amendment No. 5 to Exhibit C parallels the language proposed by Douglas Bollam in Councilor Naito Amendment No. 1 to Exhibit A.

Chair Naito asked Mr. Helm if Councilor Naito Amendment No. 6 to Exhibit C parallels the amendments which she is carrying over to the next meeting.

Mr. Helm said no. He said Councilor Naito Amendment No. 6 would implement a recommendation from MPAC to clarify regulation of non-conforming uses in the vegetated corridors. He said the purpose of the amendment is to inform local jurisdictions that if they have an existing, non-conforming use in the water quality resource area, in addition to Title 3 standards, the local jurisdictions’ own non-conforming use alteration criteria would also apply. He said the provision if effect would prevent Metro from usurping local jurisdictions’ ability to regulate non-conforming uses.

Chair Naito presented Councilor Naito Amendment No. 7, which consists of definitions recommended by MPAC.

Councilor McCaig proposed a friendly amendment to add language to the definition of “debris,” which would say that debris does not include: “natural plant materials, downed or standing dead trees or trees which have fallen into water bodies, all of which are important fish and wildlife habitat.“ A copy of the recommendation is included in the Audubon Society of Portland’s letter to Chair Naito, which is part of the meeting record.

Chair Naito asked Mr. Houck to speak to the recommendation.

Mr. Houck said there is a long history of giving the public mixed messages about whether streams should be cleaned out or messy. He said in the future, it will be important that streams are messy: especially with respect to fisheries, large woody debris in streams and dead wood, standing or downed, is important for a number of functions of the vegetated corridor. He said the purpose of the recommendation is educational: it is important not to convey a message to the public that water corridors should be tidied up unnecessarily, with respect to natural vegetation.

Councilor Morissette asked about dead trees that could fall on people and are therefore potential liabilities.

Mr. Houck said the Audubon Society is bringing someone to Portland from Spokane to address that issue. He said the Audubon Society is not interested in preventing people from managing hazardous trees. He said the perception of hazard, however, is frequently much greater than the reality. He said if the committee is concerned about mentioning the words “important fish and wildlife habitat,” the language could be changed to read “important to the functioning of aquatic systems.”

Councilor Morissette asked about adding language that would address the human aspect of safety.

Councilor McCaig withdrew her friendly amendment. She recommended voting on Councilor Naito Amendment No. 7 as written, and said she would propose new language at the next meeting. She said she has no objection with the current language, she only wanted to enhance it.

Mr. Houck asked if the committee will reconsider the language at its meeting on May 28.

Councilor McCaig said she will have language that will address the two issues and propose it to the full Council.

Chair Naito asked that the language be drafted as quickly as possible and go to MPAC for review.

Councilor Morissette said he is not necessarily against the proposal, but he will not vote yes until he is sure that the issue of human hazards is clarified.

Councilor Morissette said he has long been concerned about water quality and protecting streams. He said that while Metro’s Title 3 requirements are more than he would deem necessary to enhance water quality, it is unfair to exclude farming practices, which are the largest polluters in the region. He said Councilor Morissette Amendment No. 5 to Exhibit E would eliminate the exclusion of farming practices from Title 3 regulations.

Chair Naito asked Mr. Helm to summarize the relationship between farm practices and Title 3, as outlined in his memo dated April 30, 1998. A copy of the memo is included in the meeting record.

Mr. Helm said the Oregon Department of Agriculture (ODA) has jurisdiction to control water quality practices on farmlands in areas where it has adopted a rule or program to implement those procedures, which it has done in parts of the Tualatin Basin. He said it is the ODA’s position that it has jurisdiction over any water quality program on farmland, therefore if Metro attempts to apply Title 3 regulations to farmland, there is a direct conflict with state law. He said under the laws of preemption, the local ordinance would be subservient to the governing state law. He said through negotiations with the ODA, however, an understanding has been reached regarding how far Title 3 could regulate activities on farmland and not overtly interfere with the ODA’s statutory jurisdiction. He said the ODA has agreed that Title 3 could apply to the location of buildings (barns, outbuildings and other structures used to process farm materials) without interfering with the ODA’s jurisdiction. He said the ODA was slightly concerned about his memo because it wants to guard its jurisdiction, even though it has not promulgated rules or an official program in any areas in the metro region except for in the Tualatin Basin. He said in the Tualatin Basin, where the ODA has regulations in place, it has not addressed the location of barns and other buildings, in effect leaving those decisions up to the local jurisdictions under their zoning codes. He said this represents a middle ground for Metro to regulate some of the more development-related activities on farmland without interfering with the ODA’s jurisdiction.

Chair Naito asked Mr. Helm if he had recommended language for the definition of development. Mr. Helm said yes.

Councilor Morissette said he has read Senate Bill (SB) 100 and its implementing language, and he believes much of Title 3 usurps state law. He said Metro is not meeting state law in many other cases besides Title 3. He said putting farm practices defined in Oregon Revised Statutes (ORS) into the document sends a message that this form of polluting is acceptable, which it is not. He said that while he does not support many of the requirements of Title 3, including farm practices is an issue of fairness. He said he believes Metro has stepped over its authority in many instances already, and if Metro has already done it in other areas, he would like the opportunity to do it here. He said it is inappropriate to exempt farm practices.

Councilor McLain said the debate over the definition of development arose from concern about both farming practices and commercial logging, as expressed in Growth Management Committee, Council, MPAC and WRPAC. She said she believes this work is heading in the right direction, however she does not believe that Councilor Morissette’s amendment proposes the best language to further the conversation. She said the committee may wish to address the definition of development at its meeting on May 28, because the definition is still under discussion. She said she would hate to see Councilor Morissette’s amendment pass at this time.

Councilor Morissette said he would happy to wait until the May 28 meeting.

Chair Naito asked Councilor Morissette if he did not accept the friendly amendment as suggested by legal counsel. Councilor Morissette said that was correct.

Councilor Naito asked for further comment on Councilor Morissette Amendment No. 5 to Exhibit E.

Mr. Houck said he sat through the 1984-1987 arduous Forest Practices Act rewrite, sat for two years on the SB 1010 Tualatin Basin process, and has also sat through the process of Title 3. He said at every stage, people are pointing fingers at one another: forestry wants to know why agriculture is does not have to do something, and agriculture wants to know why urbanites do not have to do something. He said could not agree more with Councilor Morissette regarding the tremendous negative impact of agricultural practices on water quality, however there is a mechanism in place to address that, namely SB 1010. He asked the committee to note a letter from the Oregon Department of Forestry in essence asking Metro to address the forestry issues. He said suggested that commercial forestry and associated road building could be put in the development definition, thereby allowing Metro to address situations like those in Pickle Creek, Sandy and Mt. Talbert.

Councilor McCaig said she supports the proposed language in Mr. Helm’s memo on the definition of development. She asked if there is any reason to not amend it into Title 3 immediately. She said she is glad that Metro and the ODA have reached an understanding about the intent of Title 3.

Chair Naito agreed. She said she would prefer to add the language now and begin discussion.

Councilor McLain said she supports the amendment, and will be happy to present the new definition to WRPAC and MPAC.

Chair Naito said she has no more amendments for the committee to address. She said the wetlands issues will be addressed at the next meeting. She said the other major item still on the table is the suggested amendment by Councilor McLain on notice provisions as well as the Executive Officer’s suggested language inclusions for some notice assistance to local governments.

Mr. Morrissey said the committee amended the definition of development relative to Title 3, but there is also a definition of development in the Model Ordinance. He asked Mr. Helm if the committee should consider amending both definitions so that the definitions match.

Mr. Helm agreed. He said the definition of development as used for Title 3 purposes was brought over in the Model Ordinance in whole.

Chair Naito said the committee could vote on a parallel amendment to the Model Ordinance.

Councilor Morissette asked legal counsel if the implementation and the requirement of Title 3 becomes regulation once it is adopted by local jurisdictions, not once it is adopted by the Metro Council.

Mr. Helm asked Councilor Morissette if he was asking when the regulations that Title 3 requires local jurisdictions to make become effective. Councilor Morissette said yes.

Mr. Helm said Metro’s jurisdictional ability extends to requiring local jurisdictions to amend their comprehensive plans and zoning ordinances. He said Title 3 is not a direct requirement, and only becomes implemented through local jurisdictions’ actions changing their comprehensive plans and zoning ordinances.

Councilor Morissette asked if the Title 3 language will not go into effect until a local jurisdiction has accepted it, and it has up to 18 months to do so, baring a time extension. Mr. Helm said that was correct. He said in terms of implementation timeline, local jurisdictions could implement Title 3 in twelve months, if they so desire.

Councilor Morissette asked if he is correct that Metro is not implementing the zoning requirements in Title 3 until local jurisdictions implement them through their own processes, as long as they meet Metro’s time constraint.

Mr. Helm said yes. He added that in the interim, Title 3 requires that after the Council adopts changes to the Functional Plan, any changes that local jurisdictions make to their comprehensive plans and zoning ordinances in the interim period must be consistent with the Functional Plan.

Chair Naito closed the committee work session on Ordinance No. 98-730.

6.  COUNCILOR COMMUNICATIONS

Councilor Morissette asked that his resolution on moving the Urban Growth Boundary be placed on the Growth Management Committee agenda. He asked Chair Naito when the resolution will come before the committee.

Chair Naito said she had intended to schedule his resolution for the first committee meeting in June. She said she has since heard there will be a public hearing on the Wilsonville prison at that meeting. She said she could schedule his resolution for the meeting on May 28, depending on the time frame he needs to present it.

Councilor Morissette said he does not know how long the committee will want to discuss the resolution. He said the presentation is simple; he is simply stating that Metro has a state requirement to move the urban growth boundary for half the need that the Council, as a majority, voted it needs to do. He said he wants to make sure that Metro is beginning to master planning and move the UGB in September, rather than beginning to think about applying for an extension.

Chair Naito said she will place Councilor Morissette’s resolution on the May 28 agenda. She said the committee will address watershed issues first, but hopefully will have time to vote on Councilor Morissette’s resolution.

Councilor Morissette said he will also propose a resolution to request that Metro does public notification of the Title 3 proceedings, and he wants the committee to have an opportunity to vote on his resolution. Chair Naito said she hears his request.

There being no further business before the committee, Chair Naito adjourned the meeting at 3:26 P.M.

Respectfully submitted,

Suzanne Myers

Council Assistant

i:\minutes\1998\grwthmgt\05058gmm.doc

ATTACHMENTS TO THE PUBLIC RECORD FOR THE MEETING OF MAY 5, 1998

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

Oral Testifiers (testimony cards included)

Ordinance No. 98-730

Amanda Fritz

Rich Rodgers

Mike Houck

Linda Bauer

Dan Kearns

Sue Marshall