METRO COUNCIL GROWTH MANAGEMENT COMMITTEE

Thursday, May 28, 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 2:40 P.M.

1.  CONSIDERATION OF THE MAY 5, 1998, GROWTH MANAGEMENT COMMITTEE MEETING MINUTES

Chair Naito held consideration of the minutes over to the next meeting, to allow her and other councilors an opportunity to review them.

2.  ORDINANCE NO. 98-730, FOR THE PURPOSE OF AMENDING ORDINANCE NOS. 96-647C AND 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 at 2:41 P.M.

Mike Houck, Audubon Society of Portland and the Natural Resources Working Group of the Coalition for a Livable Future, asked the committee to refer to his written comments previously submitted to the decision record. He said it is time to adopt Title 3 despite its flaws. He said if the maps prevail over the code language, it is essential to have accurate, updated maps. He said the goal is to protect natural resources, not to hold up the permit process.

Anne Nickel, Columbia Corridor Association, Post Office Box 5561, Portland, submitted written testimony, a copy of which is included in the meeting record. She said her testimony refers to Discussion Draft 1A, and Discussion Draft 1B includes many of her suggestions. A copy of Discussion Draft 1B is attached to the Ordinance
No. 98-730A Amendment Packet which is included in the meeting record. She recommended that Metro not force local jurisdictions into a quasi-judicial process, and said she is concerned about the Council’s interpretation of Section 7, Administration, and the issue of regionally significant wetlands versus all wetlands.

Kelly Ross, Home Builders Association, said he would like raise a point concerning the definition of development. He referred to a memo from Ken Helm, Assistant Counsel, to Elaine Wilkerson, Director of Growth Management Services concerning Title 3 and platted subdivisions. A copy of the memo is included in the meeting record. Mr. Ross said he proposed specific language in his testimony at the last work session, and he would like it spelled out in the definitions that development also does not include construction on subdivisions that meet the provisions of this statute.

Councilor Morissette asked Mr. Ross to submit a written copy of his suggested change. Mr. Ross agreed.

Ann Gardner, Schnitzer Investment, said she is the project manager for the redevelopment on North Macadam. She said Schnitzer Investment supports Title 3 goals, but would like additional certainty that it will be able to develop North Macadam as an extension of downtown to help meet Region 2040 housing and employment goals.

Steve Berliner, Director of Friends of Kellogg and Mt. Scott Creeks Watershed, said he is also a commercial property owner, and urged the committee to protect Title 3 from the special interests of developers. He said heavy development along Kellogg and Mt. Scott Creeks has resulted in the degradation of stream quality in spite of surface water rules in that area. He said he attributes the degradation to three factors: 1) lack of commitment by the developers, 2) sporadic, inadequate enforcement by the county, and 3) inadequate buffer zones. He urged the committee to not use map-reliant language regarding wetlands because local jurisdictional mapping is inadequate and will allow many natural resource areas to escape protection.

James Dalton, Friends of Newell Creek Canyon, urged the committee to use language rather than the maps as the basis for wetland protection. He said all wetlands serve a function and there is no difference between functional and nonfunctional wetlands.

Doug Bollam, Post Office Box 1944, Lake Oswego, resubmitted a letter from Daniel Kearns, Preston Gates and Ellis LLP, dated May 6, 1998. A copy of the letter is included in the meeting record. He summarized the letter and a memo from Mr. Helm to Councilor McLain dated May 26, 1998, which is included in the meeting record. He said the Office of General Counsel’s recommendation in the memo does not meet his intent, and he asked Mr. Helm to address Mr. Kearns’s letter in its entirety.

Phil Grillo, Miller Nash, represents the Oregon Health and Sciences University (OHSU) and the Oregon Regional Primate Research Center. He said his client is in the process of expanding a research park on property in the Sunset Corridor area which includes two creeks. He said Table 1 of Title 3 and the Model Ordinance could not be deciphered as originally written, and on May 14, he proposed amendments to clarify the intent of Table 1. He urged the committee to adopt staff’s recommendations on Table 1, as outlined in a memo to Ms. Wilkerson from staff on May 27, 1998. A copy of the memo is included in the meeting record.

Liz Callison, Director, West Multnomah Soil and Water Conservation District, restated many of the points of her February 17, 1998, letter to the Water Resource Policy Advisory Committee (WRPAC). A copy of Ms. Callison’s letter is included in the meeting record. She asked legal counsel to address three questions: 1) what legal analysis has Metro done to demonstrate that Metro’s delaying or not doing Goal 5 work is a lawful action, 2) which committee members agreed to recommend that Title 3 exclude fish and wildlife and headwaters protection, and
3) what is the total acreage for exceptions areas on the maps with respect to Metro’s unbuildable lands inventory.

David Knowles, City of Portland, said the city has one suggestion with respect to Discussion Draft 1B. Chair Naito said she would invite testimony when the matter is addressed by the committee later in the meeting.

Robin Plotkin, Friends of Fox Hollow, asked the committee to pass Title 3 as soon as possible. She asked the committee to rely on the code language rather than the maps because the maps are inadequate. She said if the Council adopts language that relies on field-verified Title 3 maps over the code language, the Friends of Fox Hollow supports Mr. Houck’s recommended definition of field verified:

If a local jurisdiction chooses to use a "field verified" map to implement Title 3 they shall ensure that adequate public notice is provided to seek input from all natural resource agencies (state, local and federal), neighborhood associations, stream and watershed organizations, and private landowners.

Ms. Plotkin asked the committee to consider all wetlands currently on the Title 3 maps to be of metropolitan concern and that all wetlands be protected and recognized for their important function of water quality maintenance and fish and wildlife habitat.

Beverly Bookin, Commercial Real Estate Economic Coalition (CREC), asked the committee to address the definition of “protected wetlands” to ensure that the definition is consistent throughout the Urban Growth Management Functional Plan (Functional Plan). She said CREC supports including only significant wetlands, as defined by the Oregon Division of State Lands (DSL), in the definition of wetlands of metropolitan concern. She said CREC’s second concern is about Section 7C in which counties and local jurisdictions are required to make a study for wetlands if there is a possible existence of a wetland. She said the language is too vague, and the standard for triggering a wetlands analysis should be scientifically or substantively based.

Gail Achterman, Stoel Rives, representing Schnitzer and Zidell, and said it is critically important that the definitions in Title 3 are clear and consistent. She said the committee needs to pay very close attention to drafting in order to achieve the intended flexibility for local government implementation of Title 3. She cited Section 6(D) as an example of unclear language.

Chair Naito closed the public hearing at 3:22 P.M.

Chair Naito asked that legal counsel help the committee work through the amendments.

Mr. Helm presented Councilor Naito Amendment No. 3a. He said the provision would allow people to do minor improvements to their property.

Councilor Morissette directed the committee’s attention to a memo from Mr. Helm to himself, dated May 20, 1998, concerning Title 3 - Uses Allowed for Existing Development. A copy of the memo is included in the agenda packet under agenda item 2.

Mr. Helm presented Councilor Naito Amendment No. 7a.

Councilor Morissette presented Councilor Morissette Amendment No. 4. He said the amendment would make the definition of wetlands consistent with state law and prevent confusion.

Mr. Helm reviewed the history of Discussion Draft 1B.

Councilor McCaig asked Mr. Helm if the definitions of wetlands are consistent throughout Title 3. Mr. Helm the Office of General Counsel changed or clarified three definitions: 1) protected water features, 2) Title 3 wetlands, and 3) wetlands. He said he is confident that none of the changes will undo previous work.

Mr. Helm said Discussion Draft 1B is a complete document which the committee could adopt into the ordinance. Mr. Helm reviewed the amendments in Discussion Draft 1B.

Chair Naito invited testimony from Ms. Wilkerson, Mr. Knowles, Mr. Ross, and Mr. Houck.

Councilor McCaig asked if Discussion Draft 1B makes the map equal to the language, or if the map takes precedence over the language. Mr. Helm said the issue of the inaccurate map prevailing over objective language has been discussed at length. He said the central issue is that when a map prevails over code language, provisions in state law dictate that land use permit applications are entitled to be reviewed under the standards in place at the time the applications are submitted. He said if the map prevails, there many be instances when the map does not show a resource that would have bean protected if the text prevailed. Mr. Helm said the provisions in Discussion Draft 1B to improve the field-verified map are intended to raise the certainty to the level of protection given by jurisdictions that implement a text-prevailing system. He said the equality of the map to the language is a matter of opinion and not a legal matter.

Ms. Wilkerson said Discussion Draft 1B gives clarity and certainty by establishing that the map over prevails when it is field verified. She said the new language balances the need to give property owners certainty while using a map that is as accurate as possible. She said the language also contains provisions for regularly updating, correcting, and reviewing the map, to allow for a changing environment. She said her staff supports Discussion Draft 1B, which clarifies the approach recommended by the Metro Policy Advisory Committee (MPAC).

Mr. Knowles said having the map prevail over the code language provides the most efficient, effective and predictable level of protection possible. In reference to Section 7(A), Mr. Knowles recommended that the Council provide the same incentive to move quickly for additional amendments for things that fall into the category of Section 7(C) as well as to an error situation. He noted the determination of what is or is not an error can be a policy judgment. He said he supports the time limit, but said the 90 day time limit is not realistic. He recommended a six month deadline.

Chair Naito said the requirement is to initiate correction within 90 days, not to reach a final decision, and she feels comfortable with the timeline.

Mr. Knowles said a certain amount of time is needed for a jurisdiction to decide whether to initiate a map change, and he thinks a longer time frame makes sense. He said whatever time frame is chosen should be applied to both categories of resources.

Mr. Ross said the current document is an improvement over the original. He said he is concerned about
Section 7(C) and the low threshold that appears to trigger map amendments. He recommended linking map amendments to scientific or substantial information establishing the possibility of wetlands.

Mr. Houck responded to Mr. Ross’s comments and said the criteria established in Title 3 is adapted from DSL’s significance criteria, and is a scientifically based methodology for determining wetlands. In response to
Mr. Knowles’s comments, he said some jurisdictions are very reluctant to initiate map corrections, and it is important to establish timelines for them to follow. He said allowing six months for completion seems reasonable, and he recommended leaving in language requiring jurisdictions to initiate the process within 90 days.

Chair Naito asked if six months is sufficient for completion. Mr. Knowles said the amount of time needed depends more on the degree of public controversy than on staff time. He said it may be possible to complete the process in six months, but that would be the minimum time required.

Councilor McLain, WRPAC Chair, said the Metro Technical Advisory Committee (MTAC), MPAC and WRPAC all wanted to create a process that would be practical but have a high standard of protection. She said the proposed solution of field-verified maps addresses the concerns of WRPAC, MTAC and MPAC, and she supports Discussion Draft 1B.

Chair Naito thanked all who participated in the work group. She invited testimony from Ms. Gardner and
Ms. Achterman.

Councilor McCaig said she was not satisfied that the issue of consistency in the definitions had been addressed.

Ms. Achterman said the explanation from legal counsel helped to put the document in context. She said she is still concerned about the consistency of the wetlands definition through Title 3, and about the difference between wetlands in general and Title 3 wetlands of metropolitan significance. She said multiple definitions of wetlands creates many problems for local jurisdictions. She said if it is generally agreed that “receives information” in Section 7(C) means “receives credible information,” it should be clearly stated in the language. She said as an attorney, she is concerned that Section 3(D) will create endless disputes as staff tries to differentiate between intentional omissions and inadvertent errors in the map.

Ms. Gardner restated that it is important to create workable, accurate maps because they will impact much of development.

Chair Naito asked Mr. Shaw to address the issue of staff records and Section 3(D).

Mr. Shaw said there is no question that Section 3(D) will be difficult to apply, but staff has files on every omission and recognizes that it will have to provide those files on a jurisdiction-by-jurisdiction basis for local governments to implement Section 3(D). He said the language is not perfect, but a number of corrections can be made when local jurisdictions adopt their own ordinances and complete their own field-verified maps.

Councilor McCaig said two of Ms. Achterman’s suggestions appear to be technical amendments. She asked the committee if it would support directing legal counsel to review Title 3 for consistency and make recommendations, and if the committee would support a technical amendment at the Council level to insert the word “credible” into Section 7(C). The committee agreed.

Councilor McCaig said Ms. Achterman’s third concerns appears to be an ongoing problem on which the Council can continue to work. She said she supports moving the language forward and continuing work at the Council level.

Chair Naito agreed. She said the intent of Section 3(D) is to remove property that has already been studied, so that everything is not revisited at the local level. She said she supports a conceptual amendment to Section 7(C) at the Council level to clarify that there is a threshold level for the kind of information that could trigger a review.

Councilor Morissette recommended the term “technically justifiable.” Chair Naito noted his recommendation and directed legal counsel to return to Council with recommended language for Section 7(C).

Councilor Morissette presented the Morissette-McLain Amendment to Ordinance No. 98-730.

Chair Naito invited testimony from Ms. Wilkerson. Ms. Wilkerson said staff has reviewed the amendment and believes it can execute the requirements as proposed.

Chair Naito introduced Councilor Naito Amendment: Title 3 Compliance Review. Mr. Shaw said the committee only needs to vote on Section 2(G) of the amendment, as the amendments to Section 1(A) and 1(B) are the same as those adopted in the Morissette-McLain Amendment. Mr. Shaw said the amendment adds the same Metro compliance review for Tile 3 used for the rest of the Functional Plan.

Chair Naito withdrew Councilor Naito Proposed Amendment No. 8 due to the passage of the Morissette-McLain Amendment to Ordinance No. 98-730.

Mr. Helm reviewed his memo to Councilor McLain dated May 26, 1998, on Title 3 - Mixed Use Areas, Model Ordinance Table 1, and Model Ordinance Alternatives Analysis. He said the issue of Title 3 exemption for mixed use and station areas was brought up by the City of Hillsboro. A letter from John Godsey, Council President, City of Hillsboro to Chair Naito on this issue is included in the meeting record. Mr. Helm said it is strictly a policy decision for the committee and Council. He commented that Title 1 and Title 3 are equal provisions of the Functional Plan and there is flexibility in Title 3 to allow density.

Councilor McLain said she would not bring forth an amendment on this, as staff has indicated that there is sufficient flexibility in Title 3 to meet both goals.

Mr. Helm reviewed staff’s recommended changes to Table 1 of Title 3 and the Model Ordinance. He said the committee also should consider whether it wants to require an appendix to be added to the Model Ordinance on this issue. He commented that if the committee decides to amend Table 1 of the Model Ordinance, he would recommend also amending Table 1 of Title 3 as the tables are identical.

Rosemary Furfey, Growth Management Senior Regional Planner, said staff made several changes to Table 1 to clarify how to interpret the table. She said she believes that clarifications are important, and she recommended committee adoption.

Mr. Helm reviewed the Office of General Counsel’s draft provisions for Model Ordinance Alternatives Analysis.

Councilor Morissette said the proposed language creates an easier process for existing structures to be modified.

Chair Naito invited testimony from Ms. Wilkerson.

Ms. Wilkerson said on balance, the amendment is probably a good proposal, but will need to be tested in reality. She said existing use regulations are very complex and extensive, and the amendment may be difficult to implement in local jurisdictions. She said the proposed language conveys the intent of existing uses having permissions that are easier to get through than new construction.

Chair Naito said she will not support the amendment because she believes the committee addressed the issue previously.

Mr. Helm explained the amendment. He said there is no reason to not add the language to Title 3, but it is not necessary. He said the amendment restates state law.

Chair Naito stated for the record that in adopting Discussion Draft 1B, there will be necessary changes in the Model Ordinance for consistency. She said based on the amendments adopted today, staff will make recommendations and bring amendments forward to the Council meeting on June 4, 1998.

Councilor Morissette thanked Chair Naito and Mr. Helm for their analysis of the impacts of Title 3. He said it is important that public notice clearly state the impact of Title 3 on affected property owners in regard to specific setbacks, nonnative vegetation and activities.

Councilor McLain said the amendment on Model Ordinance alternatives analysis will likely come before full Council for a vote. She said Mr. Houck has proposed language concerning the field-verified map which Councilors may wish to consider.

Councilor Morissette said he continues to have the same concerns about Title 3 that he has had since the beginning.

Chair Naito will carry Ordinance No. 98-730B to the full Metro Council.

3.  RESOLUTION NO. 98-2640, FOR THE PURPOSE OF ESTABLISHING TIMELINES FOR MEETING METRO’S OBLIGATION TO EXPAND THE URBAN GROWTH BOUNDARY

Councilor Morissette presented Resolution No. 98-2640A. A copy of the amended resolution is included in the meeting record.

Councilor McCaig asked Ms. Wilkerson if the Council needs to set a schedule, or if current code language is sufficient. Ms. Wilkerson said the Council does not need to adopt a timeline, but the resolution would demonstrate that the Council is doing its best to meet the requirements of state legislation. She said current Metro code includes provisions which make it difficult to meet state deadlines, and Councilor Morissette is proposing that the Council reexamine existing requirements for concept planning. She said without changing the existing process, it will be impossible to meet the December 31, 1998, deadline.

Chair Naito said passage of the resolution would not change the current requirement for urban reserve master planning to occur before the urban growth boundary (UGB) is moved; it would merely indicate that the Council will debate the sequence of master planning and UGB expansion in the next few months.

Ms. Wilkerson said the deadlines in Resolution No. 98-2640A are based on the assumption that the sequence would change.

Chair Naito said she supports a timeline, but is concerned that the resolution assumes the code will be changed.

Councilor McLain said the resolution does not assume that there will be amendments to the Metro Code, it only sets a deadline to review existing procedures and determine if amendments to the code are appropriate.

Chair Naito said the committee would vote on the resolution at its next meeting to allow Ms. Wilkerson time to prepare a schedule for the remainder of 1998.

Chair Naito opened a public hearing at 4:55 P.M.

Steve Morasch, Schwabe Williamson and Wyatt, represents the Halton Company which owns property in Urban Reserve 31. He said the Halton Company is master planning about 800 acres in Urban Reserves 31 and 32 and expects to have a final draft prepared by the end of July. He requested that Urban Reserve 31 and 32 be considered for eventual inclusion in the UGB.

Mary Kyle McCurdy, 1000 Friends of Oregon, said she is concerned that the Council may bring land into the UGB before completing concept planning. She said the resolution does not address the possibility of a time extension or mention Tier 1 Urban Reserves. She said a timeline is appropriate, but it should not dictate the process.

Councilor Morissette said he is not anticipating an extension because he believes the Council can meet the State’s deadlines. He said he deliberately omitted any reference to Tier 1 Urban Reserves.

Chair Naito closed the public hearing at 5:00 P.M. She thanked the committee for its hard work.

4.  COUNCILOR COMMUNICATIONS

There were none.

There being no further business before the committee, Chair Naito adjourned the meeting at 5:01 P.M.

Respectfully submitted,

Suzanne Myers

Council Assistant

i:\minutes\1998\grwthmgt\05288gmm.doc

ATTACHMENTS TO THE PUBLIC RECORD FOR THE MEETING OF MAY 28, 1998

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

Continued

Oral Testifiers (testimony cards included)

Ordinance No. 98-730

Mike Houck

Anne Nickel

Kelly Ross

Ann Gardner

Steve Berliner

James Dalton

Doug Bollam

Phil Grillo

Liz Callison

David Knowles

Robin Plotkin

Beverly Bookin

Gail Achterman

Resolution No. 98-2640

Steve Morasch

Mary Kyle McCurdy