MINUTES OF THE METRO COUNCIL MEETING

December 7, 2000

Metro Council Chamber

Councilors Present:  David Bragdon (Presiding Officer), Susan McLain, Ed Washington, Rod Park, Bill Atherton, Rod Monroe, Jon Kvistad

Presiding Officer Bragdon convened the regular council meeting at 4:00 p.m.

1.  INTRODUCTIONS

Sumner Sharp, Oregon Chapter of the American Planning Association, presented Councilor McLain with the Year 2000 Distinguished Leadership Award.

2.  CITIZEN COMMUNICATIONS

Roy Truelsen, 1520 Northwest 123^rd Avenue, Portland, introduced himself as a resident of Washington County, and noted that he was a former Metro employee. He gave a brief review of Metro's open spaces program, and addressed issues of concern that were identified in the June 2000, open spaces audit.

Carey Sheldon, 13600 Southeast Sunnyside Road, Clackamas, spoke in favor of Measure 7. He said he owned property on Mt. Talbert, which had been landlocked from future development due to Metro's purchase of the surrounding land for parks. He said he has been waiting for two years for Metro to either purchase his property or grant him access back to his property.

3.  EXECUTIVE OFFICER COMMUNICATIONS

There were none.

4.  AUDITOR COMMUNICATIONS

There were none.

5.  MPAC COMMUNICATIONS

There were none.

6.  CONSENT AGENDA

6.1  Consideration of the Minutes of the November 30, 2000, Regular Council Meeting

7.  PUBLIC HEARING

7.1  For the Purpose of Annexing to the Metro Jurisdictional Boundary Approximately 317 Acres of Land South of the City of Sherwood

Mary Weber, Manager, Community Development, Growth Management Services, reviewed the proposed annexation and code requirements. A staff report contains information presented by Ms. Weber and is included in the meeting record. She noted that originally, public notice listed today's public hearing for 2 p.m., which created some confusion. She and Michael Morrissey, Senior Council Analyst, met with everyone who arrived at 2 p.m., made a list of those people who did not have written testimony to submit, and noted whether they opposed or favored the annexation. The list of individuals is included in the meeting record.

Councilor McLain asked for clarification that staff was recommending against annexation based on the fact that the council has not expressed intent to bring the area into the urban growth boundary (UGB), rather than based on an inability to provide urban services.

Ms. Weber said yes, that was correct.

Councilor McLain clarified that if the land was brought into the jurisdictional boundary today, it still could not be urbanized until it was brought inside the UGB. She said today's message was that the council did not think it could bring the land into the jurisdictional boundary, because Metro Code stated that the council would need to amend the UGB at the same time.

Dan Cooper, General Counsel, said yes, Councilor McLain was correct.

Councilor McLain recommended that the staff report simply state that the annexation request did not meet Metro's Code. By including information about the difficulty of providing urban services, Metro could place the Sherwood area at a disadvantage in the future, when the UGB is expanded.

Mr. Cooper said the council may want to clarify the criteria in the future, to eliminate some of the current confusion.

Presiding Officer Bragdon opened a public hearing.

Jessica Wright, student, Archer Glen Elementary, 12055 Southwest Malloy Way, Sherwood, asked that the council help them manage the growth of their small, but rapidly growing, community. She noted that despite the addition of two schools in the past six years, her school was already overcrowded. She said Sherwood was growing too quickly, and she asked the council to not expand the urban growth boundary in the near future.

Michael Aden, student, Archer Glen Elementary, 14722 Southwest Bell Road, Sherwood, said he thought 317 acres for houses was a bit selfish. He noted that across the street from his school, a builder clear-cut many trees to build a new neighborhood. The neighborhood replaced open fields and wetlands, and displaced many animals.

Margarette Nicholls, 24788 Southwest Labrousse Road, Sherwood, deferred her time to other testifiers.

Richard Scott, 17433 Southwest Brookman Road, Sherwood, gave his time to Doug Campbell.

Keith Jones, City of Sherwood, Planning Department, 20 Northwest Washington Street, Sherwood, stated the city’s position. He said the City of Sherwood would prefer to table its concept plan until Metro is prepared to annex the area into the UGB. The city believed it would be premature to annex the area into the jurisdictional boundary at this time.

Councilor Atherton said Metro's current process for moving the UGB did not take into account that the City of Sherwood votes on annexations. He asked if Mr. Jones felt it would be useful for the citizens of Sherwood to vote on annexation prior to Metro moving the UGB.

Mr. Jones said yes, he believed that would be a good idea.

Philip Lapp, 17400 Southwest Brookman Road, Sherwood, said he was outside of the proposed annexation. However, he has farmed 50 acres in Sherwood since 1960, and expects to continue. He said it would be very difficult to continue farming with high density development across from his farm. He said he was also concerned about increased traffic.

Teresa Jaynes-Lockwood, 17495 Southwest Brookman Road, Sherwood, spoke on behalf of her neighbors and co-applicants. Her neighbors who were in the Council Chamber stood in support. She asked the council for approval of the jurisdictional application. She read from a document titled, "Reasons for Favorable Consideration towards Annexing Proposed Sherwood Area into Metro's Jurisdictional Boundary," a copy of which is included in the meeting record.

Sally Ann Howard, 18520 SW Brookman Rd, Sherwood, represented herself and her husband, and Don and Sue Blanchard, who also lived on Brookman Road. She read into the record a letter from Mr. Blanchard. In his letter, Mr. Blanchard asked Metro to grant the annexation out of respect for the good faith effort made by the petitioners. He noted that the petition which was made in accordance to the rules that were in place at that time. Ms. Howard added that while she understood that the process was long and complicated, she and her neighbors were trying to plan for the future.

Doug Campbell, Planning Director, Willamette Landing Investments, 4380 Southwest Macadam, Portland, spoke on behalf of a number of the property owners within the proposed jurisdictional boundary area. He listed a number of reasons for supporting the jurisdictional boundary change. A document from Mr. Campbell, titled "(Continued) Reasons for Favorable Consideration toward Annexing the Proposed Sherwood Area into Metro's Jurisdictional Boundary," includes information presented by Mr. Campbell and is included in the meeting record. He also submitted a copy of an intergovernmental agreement between the Tualatin Valley Water District and the City of Sherwood, guaranteeing water services to the area. A copy of the agreement is included in the meeting record.

Adelle Jenike, 16055 Southwest Boones Ferry Road, Lake Oswego, said she represented some of the property owners as a real estate broker. She asked the council to make its decision with the realization that the applicants began the jurisdictional boundary annexation process in December 1998. She reviewed the history of their application request, and added that the applicants had invested a substantial amount of time, work and money on their application.

Carleen Brewer, 17769 Southwest Brookman Road, Linda Scott, 17433 Southwest Brookman Road, and Eleanor Yeager, 17601 Southwest Brookman Road, gave their testimony time to Doug Campbell.

Robert Simon, General Counsel, Willamette Landing Investments, Post Office Box 6059, Portland, said on Tuesday, December 5, 2000, the City of Sherwood adopted a transportation management plan for Highway 99W. A copy of the Sherwood City Council and Planning Commission meeting agenda packet is included in the meeting record. He briefly reviewed the plan. He asked the council to continue the Sherwood annexation application, so that Metro may influence the decisions made in the Sherwood area.

Dan Tatman, 24351 Southwest Middleton Road, Sherwood, submitted a document titled "Issue." A copy of the document contains information presented by Mr. Tatman and is included in the meeting record. Mr. Tatman spoke to concerns about the petition and the concept plan, and said they could not be taken at face value.

Presiding Officer Bragdon closed the public hearing.

Councilor McLain thanked everyone for testifying, and commended everyone on both sides of the issue on following the process and submitting excellent work. She recommended that the council give the applicants a continuance so that they would not have to redo their application when it was time to move the UGB. She said legally, the council must review the application based on the current Metro Code. She said continuing the application would also allow further refinement to the staff report.

Councilor Park noted his ex parte contact with Ms. Jenike and members of her group. He did not believe anything was discussed at his prior meeting with Ms. Jenike that was not discussed during the public hearing. He supported Councilor McLain's motion to continue. He did not want to say no to the application, but he was not in a position to say yes, either.

Councilor Kvistad said he did not see any reason to deny a request for annexation to the jurisdictional boundary. He noted that a few years ago, the council supported the idea of a large jurisdictional boundary, with the goal of protecting land through rural reserves.

Presiding Officer Bragdon said he was inclined to support Councilor McLain's motion to continue. He noted that the applicants were caught between two systems.

Councilor McLain said she would vote for the continuance for two reasons. First, it was the fairest option for all the applicants and residents in the area. Second, jurisdictional annexation would allow the residents to vote for the Metro Council.

Presiding Officer Bragdon recessed the meeting at 5:23 p.m. He reconvened the meeting at 5:30 p.m. for the time certain panel discussion of Measure 7.

10.  MEASURE 7 PANEL DISCUSSION

Presiding Officer Bragdon noted that in November, the voters passed Ballot Measure 7, which has profound implications for the land use system. Although there were still more questions than answers, the council had invited a panel of experts to share what they knew.

Tim Sercombe, Attorney, Preston Gates and Ellis, 222 Southwest Columbia, Suite 1400, Portland, noted that he did general counsel work for the Cities of Hillsboro and Troutdale, and did special counsel work for several counties and cities around the state, in addition to representing private property owners. He noted than an injunction on Measure 7 was issued on December 6, but regardless of whether Measure 7 survived its judicial challenge, many of the topics that would be discussed tonight would be relevant in the future. He spoke on the topic of estimated fiscal impacts on local governments, and said there were three main questions on which to focus: 1) how broad was the measure, 2) how did one measure reduction in fair market value, and 3) how often would local governments choose to release properties from the scope of the measure, as opposed to paying compensation under the measure?

First, Mr. Sercombe spoke about the broadness of the measure. The measure spoke about regulation that restricts the use of private real property, and also said the restriction had to be imposed on the property. The language could be interpreted in a narrow, literal way. Under this view, the measure only covers restrictions on the use of land that are imposed on the property. This interpretation could create an argument that the measure did not apply to regulations that create a process that allows for conditions or approvals of a particular use of property. Instead, it covers traditional zoning controls, and probably covers area restrictions. This interpretation would exclude building code requirements or things that regulate activities on land, and not the use of the land itself. A broader view has been expressed by many people in both camps: those who say the sky is falling, and those who advocate maximum property rights under the measure. The broader view is that the measure covers all sorts of activities on land, including building codes and nuisance regulations. It clearly does not cover franchising and right-of-way management issues, because it covers only regulations of private real property, not public property.

Mr. Sercombe spoke about the degree of the measure's retroactivity, in terms of its scope and fiscal impacts. Compensation is owed when a regulation is adopted, first enforced, or applied after an owner acquires an interest in a property. Compensation is not owed for regulations adopted prior to ownership. There are at least two different ways to read that coverage. It clearly is partially retroactive. It clearly applies if someone became an owner of property ten years ago, and a regulation was adopted eight years ago that devalued the property. The real question is whether or not the measure applies to regulations that are adopted before one becomes a property owner, but that are enforced or applied as to the property after one acquires ownership. City governments are encouraging a narrow interpretation of the measure. How broadly the language is interpreted will be a major factor in determining how pervasive the measure is, and what its fiscal impact may be.

Second, Mr. Sercombe talked about the question of how reduction in fair market value will be measured. It is likely the state will borrow from an existing eminent domain law. One big issue in determining how to measure loss in value is, what is the nature of the regulation or restriction that causes the loss in value? Also, will each small parcel of land be considered individually, or will the property owner's adjacent land be considered?

Third, Mr. Sercombe talked about the question of when, and under what circumstances, local governments must pay. Measure 7 appears to have a "pay or release" option: when presented with a claim, a city has the option to release the property from the effects of the measure, or pay compensation. How local governments will make that choice, and in what circumstance, is key to the measure's fiscal impacts.

Councilor Park asked about the concept of "first enforced." He noted that Metro has wetlands restrictions on lands for development, but those wetlands are not delineated until someone submits an application permit. Would that fall under the criteria of first enforced, even though the regulations have been on the books?

Mr. Sercombe noted that he does have a local government bias, but he would want to look first at the regulation and ask, does it, on its face, restrict the use of property? Or is it a process regulation that says, before a property is used, certain processes must be followed, and it may or may not have a restrictive effect? Assuming that the regulation says someone cannot build on wetlands, and it is a direct regulation that applies to property, then yes, he thought that sort of restriction would be subject to Measure 7.

Councilor Atherton noted Mr. Sercombe's statement that one of the key issues is how to measure the reduction in value. He said everyone knows that currently, very substantial subsidies are provided by the public for development in Oregon. He asked if Measure 7 would apply in some way if a jurisdiction were able to raise its system development charges (SDCs) to try to collect the full value?

Mr. Sercombe said if raising the system development charges would make it more costly to develop property for a particular use, it might affect the valuation of the property. If Councilor Atherton's question is, would the SDC increase ordinance itself be a Measure 7 limited ordinance, then he suspected the answer to that is no. It is not a regulation on the use of property that is imposed on property. It is, in fact, imposed on people who chose to develop property, and not on the property itself. He noted that there was legal precedent for the term "imposed on property," from the Measure 5 property tax restriction approved by voters in the past.

Jeff Condit, Attorney, Miller Nash, 111 Southwest Fifth Avenue, Portland, said he represented local governments and private property owners. Yesterday, Miller Nash held a Measure 7 summit, during which everyone agreed that the measure is vexingly ambiguous concerning major questions. The most vexing question in the measure is the meaning of specific words, because of the test the Supreme Court has set for construing initiated measures. That test relies on interpreting the text and context of the measure. If that is unclear, then the court moves to examining the history of the measure by studying the voter’s pamphlet and ballot title. If that remains ambiguous, the court moves to standard rules of maxim of statutory construction. The exact meaning of each word in ordinary usage is critical to how the courts will construe meaning, and if the court determines a meaning, it does not matter what the intent was or what the ballot title said.

The meanings of the words “enforced or applied” are at the center of the difficulty in determining what level of retroactivity should be established. The statement, “the property owner is due compensation if the regulation was adopted, first enforced, or applied after the current owner of the property became the owner,” presents three choices: 1) The measure is prospective only, applying only to future regulations. A standard rule states that if a measure does not state it is retroactive, it is not. 2) The measure has limited retroactivity – the property owner can apply if the regulation was enacted after the property owner bought the property. 3) The measure is fully retroactive.

Full retroactivity depends on how the word “applied” is interpreted. If it means that any time the regulation is applied regardless of when the owner bought the property, it would be absurd and devastating, as anyone could claim compensation anytime the regulation comes into play. Oregonians in Action have stated that that was not their intent. Their intent was to compensate property owners who bought property expecting to be able to do one thing and have government prevent that through subsequent regulation.

The prevailing opinion is that the courts will probably determine that the measure means a the middle degree of retroactivity, but the language is too ambiguous to predict that with any degree of certainty. The legislature cannot change the language in the measure, because it is part of the constitution. It can fill in the holes in the measure and provide guidance as to the application and jurisdiction of application and what is meant by compensation and “fair market value.”

Scott Ashcom, Oregon Association of Nurserymen, which represents the production nursery industry in Oregon, gave an agricultural perspective on the measure that included politics, economics, and social components. The nursery industry contributes $600 million in sales each year and represents the largest segment of Oregon agriculture. Other segments make agriculture important enough to the economy that Oregon Law appoints farmers as stewards of large amounts of farmland in the state, and the land use laws support that mission. Appropriate laws include zoning regulations, such as the Exclusive or Qualified Farm Use zones, coupled with tax consideration to encourage farming. The tax element is crucial to preserve farming as a viable business in Oregon.

Most of Oregon’s farmers, however, are “lifestyle” farmers, who do not earn their living from farming. Many of these farmers have an incentive to convert their farmland to higher-value non-farm uses. Measure 7’s passage created a windfall for these individuals and others interested in land speculation. This would result in 1) the proliferation of new, non-farm uses that would conflict with farm uses; 2) upward pressure on farmland prices and property taxes, limiting expansion possibilities for farmers; 3) increase in lawsuits against farmers whose noise, dust, and slow-moving equipment create annoyances for new residents. Although right-to-farm laws protect farmers against court judgments in these cases, they do not prevent the lawsuits, the court fights, and the attorney’s fees; 4) increased traffic that makes farming more difficult and hazardous; and 5) increased demand on water resources limiting or prohibiting more intensive farming.

The property tax implications are particularly troublesome. Production farmers might be subject to disqualification for farm use zones or be required to apply annually and perhaps threaten farm use assessment altogether. Measure 7’s effects could devastate the Oregon farm economy.

Jana Jarvis, Oregon Association of Realtors, provided a realtor’s perspective from a historical standpoint. She said most of the fears about the consequences of Measure 7 are based on the premise that Oregon voters were misinformed, unaware, or too stupid to understand the value of Oregon’s land-use planning of the past 30 years. That rhetoric fails to recognize a basic premise of American life – that the government should not use its collective power to coerce individuals into giving their property for public good. The nation has steadily moved from one that put individual rights first to one that puts the perceived needs of the group over those of the individual.

“Takings” has been part of the law, providing for compensation to landowners when the government renders land valueless. Senate Bill 100 retained the notion that government should bear a portion of this cost. Section 24, subsection 4 states: “a recommendation to the legislative assembly on the implementation of a program for compensation by the public to owners of lands within this state for any loss of use of such lands resulting directly from the imposition of any zoning, subdivision, or other ordinance or regulation regulating or restricting the use of such lands.” This part of Senate Bill 100 was never implemented, leading to Measure 7.

Realtors remained neutral on Measure 7, supporting property rights yet remaining concerned about the vagueness of the bill and how it would be applied. But the voters supported the bill because enough people have suffered injustices from land use laws. They believe Oregon has gone too far, and land-use laws have become increasingly burdensome, arbitrary, and unfair, and have perverted Governor Tom McCall’s vision. No one believes that Governor McCall would have wanted to prevent a retired couple from farming 20 acres of blueberries simply because they did not earn $80,000 from the operation. Abuses in applying land use laws have occurred far from the level of the citizenry. Measure 7 attempts to correct these problems. Realtors support reasonableness in land-use planning – a benefit from zoning that creates predictability and value in property transactions. Realtors look forward to identifying and correcting the injustices that brought Measure 7 about.

Councilor Atherton asked Ms. Jarvis what the Association of Realtors would suggest landowners do when they reap windfalls from government actions, such as when the government extends a roadway or up-zones a property.

Ms Jarvis said the government would be compensated through increased property taxes.

Councilor Atherton said studies had shown increased property taxes covered only maintenance, not the capital costs of improvements.

Mike Burton, Executive Officer, noted that although Ms. Jarvis thought that the voters had voted against land-use planning, the measure contains no reference to land-use planning. He thought they had voted against “takings.”

Councilor Park asked Ms. Jarvis if the reverse were true—i.e., if she thought loss of property values was compensated through lower property taxes. Farmers give up the right to develop through exclusive farm use (EFU) zones, but they pay a much lower tax rate.

Ms. Jarvis said she was more concerned about people who could not build on their land.

Richard Benner, Director, Department of Land Conservation and Development, summarized how his organization was approaching the measure. He distributed a memorandum he had presented at a meeting of the Land Conservation and Development Commission (the Commission) on December 1, 2000. A copy of the memorandum is included in the meeting record. He had expected an opinion from the Oregon Attorney General today, but it had not been forthcoming, most likely because of the injunction issued by the Marion County Circuit Court yesterday.

The Commission first acted to postpone two rules, one on natural hazards that would amend Goal 7, and another proposing an amendment to Goal 14 on urbanization. One of the reasons was that either of these rules might reduce the value of property. The other was the ambiguity surrounding the issue of retroactivity.

Another major issue for the Commission is the local governments’ immediate response to the measure, i.e. to scramble to establish claims processes and, in some cases, processes for issuing waivers for comprehensive plans provisions. Many land-use ordinances derive from some state law. Ordinances that allow the waiver of another ordinance that derives from state law, violate state law. Those decisions are land-use decisions. State statutes allow that if land-use decisions are made and no one appeals within 21 days, the decision is deemed to comply with statewide planning goals. Waivers not appealed are assumed to comply.

Another problem is that most of the ordinances are not conditioned on Measure 7’s taking effect. Thus, if passed, they become free standing ordinances. Were Measure 7 to be thrown out by the courts, the Commission would have no choice but to appeal all those ordinances to the Land Use Board of Appeals. The waivers do not just affect land-use laws, but other statutes as well.

The Commission does not know what to do about Periodic Review, the process that local governments go through every so many years to bring their comprehensive plans up to date. There are about 115 cities and counties around the state currently doing Periodic Reviews. Each review has a work plan associated with it that has been agreed upon by the state. Some of the work tasks would require the local government to make amendments to its comprehensive plan or land use regulations. One example many governments are working on concerns Goal 5 riparian provisions. It is likely that the adoption of a riparian ordinance could be construed to reduce some property values. The Commission would be putting a government in the position of requiring amendments that would make them vulnerable to claims.

Jurisdictions cannot simply quit the process, because the statute that governs Periodic Reviews contains timelines, and the Commission does not have the authority to vary those timelines. Riparian ordinances are also part of the Oregon Plan – the Governor’s response to the listing of endangered species. The Commission could not back away from the Review work tasks without serious consequences. The Commission will not know how to respond or how to advise jurisdictions until the Attorney General issues an opinion.

Another dilemma is that since the planning laws are implemented by city and county comprehensive plans, the first line for receipts for claims is a city or county. Some of the things cities and counties do are in response to state law. It is fair to expect the claim would be passed on to the state in those cases, but it is not clear how that would happen. That is another question the Attorney General will be answering.

Councilor McLain referred to the Periodic Review plan and the implications for the tasks underway. She asked if the Commission was working on a plan for the short-term impacts while waiting for the Attorney General’s advice.

Mr. Benner said yes. Not all the review tasks will be implicated by Measure 7. His staff will talk with cities and counties to determine which tasks will not be implicated.

Councilor Park asked Mr. Benner about the status of urban growth boundary questions. Do they exist? Can they be moved? Is it a regulation to not move them to include someone’s property?

Mr. Benner said that until the Attorney General or the legislature says differently, Measure 7 does not repeal any laws or ordinances, including those relating to the urban growth boundary.

Councilor Park asked if land were not brought in, would the owner be due compensation?

Mr. Benner said he did not think so, depending on how retroactivity is interpreted.

Presiding Officer Bragdon asked Mr. Burton for his perspective.

Mr. Burton noted that takings under Oregon law must follow due process and pay compensation. The Dolan case in Tigard was Tigard’s mistake. He was surprised by the ballot title because the government is already prohibited from takings. Nonetheless, voters appeared to think there was a problem. On the other hand, the Oregon land use laws have served the people well on many fronts.

Measure 7 was passed by the voters to correct those perceived problems. The meaning of the measure will be in the courts for some time. Meanwhile, the legislature will be in session, but the legislature has a long-standing practice of not acting on issues that are in the courts. What can the legislature, therefore, do while this measure goes through the courts?

Mr. Condit said that legislators who attended the Miller Nash conference recognized that regardless of how unclear the message was from the voters, the voters had sent a message and the legislature needed to address it. The problem mentioned by Rep. Max Williams was that if the legislature does not act in this session, and the court ultimately upholds the measure next year, the measure will go into effect without legislative refinement. The legislators seemed to feel some need to act. Although it cannot change the wording, it can try to rewrite the measure based upon the perceived intent of the voters and send it back out as another measure. If Measure 7 were declared unconstitutional, the legislature could create an alternative to correct the unfairness without bankrupting local governments or gutting the state system.

Mr. Benner added that the legislature could also go into special session, so it could do something if it closes down in July and the court opinion comes in September. Second, Ms. Jarvis mentioned a provision of Senate Bill 100 about compensation. Three times during interim sessions, a statutory joint legislative committee on land use established back in 1973, has taken up the question of compensation. Each time its report sent to the legislature was that the solution is a “windfall for wipeouts” program. The legislature has not followed the recommendation because it is unusual and complicated to explain to the public. A windfall for wipeouts program might be part of a measure offered to the public by the legislature as a substitute for Measure 7. As it stands, Measure 7 would require such a large pay-out that either taxes would need to be raised, services curtailed, or land use laws waived to cover the cost.

Mr. Sercombe said one of the concepts he anticipated to be forthcoming would address Measure 7’s ambiguity and limit the extent of its reach. It would try to respond to the will of the voters and ensure a degree of equity in the system without devastating local governments. That could happen by 1) limiting it to land-use regulations and exempting environmental laws; 2) requiring that the diminution in value exceed a certain percent of the land value; 3) ensuring that the measure applies only to prospectively; and 4) ensuring that the reduction in value is governed by the entire property by comparing the regulations in place when the ownership occurs, versus regulations in their entirety when the claim is made. Those kinds of changes would produce equity yet allow the land-use planning system to continue.

Mr. Burton concurred with Mr. Sercombe, and noted that when people require the government to pay, it means more taxes. He added that Metro staff is proceeding with its tasks as set out by state law and its own mission; however, it was doing so with the potential effects of Measure 7 in mind.

Councilor McLain asked Mr. Sercombe if the legislators, in thinking about another measure, had taken into consideration programs already in place, such as Metro’s willing seller program.

Mr. Sercombe said some are doing that. Many jurisdictions had responded by trying to put in place processes for handling claims. But there are many refinements to zoning laws that can be made to mitigate the economic impact of various controls. It will be important to focus on whether there might be ways to achieve regulatory objectives without using land use controls – for example, by creating incentives or qualifications that create benefits for property owners if particular regimes are maintained. Instead of a mandate, there might be insurance breaks or tax breaks that can be offered.

Councilor Park noted that lower property tax rates for EFU lands are one of those compensations for lower property values. An extrapolation might be a property tax credit for riparian zone protection if an individual must give something up for the benefit of the public. The measure would need to be rewritten to allow for that, but it might be a way of maintaining the system without breaking the bank.

Mr. Benner said property tax credit systems are already in place. One that might apply to riparian zones relates to open spaces and has been available for some 20 years. That would probably not satisfy many people, as the cash value would probably be much less.

Councilor Park the concept would be to compensate the owner for full value through tax breaks.

Mr. Benner said he had heard suggested that the owner whose value had been reduced would receive a tax credit. Would that not cut the tax money available for local governments, requiring a cut in services and have the same fiscal impact on local governments?

Councilor Park said that, for example, property located near open spaces often has a higher property value. He noted that regardless of the compensation, the IRS would want its cut.

Councilor Washington said that in truth, answers are found when governments’ backs are up against a wall, like they are now. He noted that the problems do not reside with any particular group, but with all the citizens of the region. He said no one knows what Tom McCall really meant. The crucial question is not what he meant, but what the people want right now. He expressed hope that if anything comes out of this, it will be a well-thought-out solution and not a reaction to crisis.

Presiding Officer Bragdon asked Mr. Sercombe about non-land-use regulation. The measure talks about government regulation, not specifically land-use. Metro regulates transfer stations for a variety of reasons. Could an owner or operator make a claim based on a limit on the amount of garbage that could move through a particular facility?

Mr. Sercombe said the regulation must be imposed on the property and restrict its use. It is not yet clear where this may lead. He said he did not believe that occupational licenses applied to the use of property, and therefore they lay outside the scope of Measure 7.

Presiding Officer Bragdon said that Metro, like the Commission, works with other jurisdictions. He asked how Metro could work with local jurisdictions that have been put in the box of having to enforce laws that conflict with state laws. The box is that this measure offers local jurisdictions the choice of enforcing the measure or paying compensation, yet Metro’s Functional Plan or state law does not allow the choice of waiving the requirement. How will the Commission handle that and what does the Commission suggest Metro do?

Mr. Benner said that if the measure itself is self-executing, the problem described earlier does not exist. If the constitutional measure gives the jurisdiction the ability to waive any laws, it is superior to Senate Bill 100 or any other statute. Some people interpret the measure that way. That interpretation would dispose of that question. As to working together, the Commission wants to do that. The question of cooperation on the implementation of Measure 7 came up at a community forum. They formed a committee composed of representatives of all local governments and state agencies to work together formally.

Presiding Officer Bragdon asked Mr. Cotugno to come forward to address some of the provisions associated with Measure 7. One of the provisions says that Measure 7 will not apply when state regulations are designed in conformity with “minimal” federal regulations.

Andrew Cotugno, Planning Director, said there will be many cases where Metro will not be able to rely on federal regulations. One example relates to the clean air act, a copy of which is included in the meeting record. Federal law requires that the air shed meet a certain standard, but it is left to local discretion on how to meet that standard. Metro has chosen to meet that plan by implementing the 2040 Growth Concept, which includes parking rations, the urban growth boundary, and limits on development of employment areas. If Metro cannot enforce regulations in connection with 2040 due to Measure 7, it runs into problems with the clean air act. In other areas of the country, the standards are met through other restrictions, such as on industrial emissions. That could be done in this area, but it would result in higher costs for clearer burning fuels.

Another example is the Westside Full-Funding Grant Agreement. That money was conditioned on implementing the 2040 concept, particularly the station areas in Hillsboro. The relationship in the funding contract lies with Tri-Met, not Metro. The grant agreement requires Tri-Met to do everything in its power to make sure 2040 gets implemented, but Tri-Met lacks the authority to implement Metro’s land-use plans. Tri-Met would be liable for paying back the money if Metro could not implement its land-use policies.

A third example comes from an article in the December 6, edition of The Oregonian, which said the National Marine Fisheries Service is explicit about a 200-foot buffer along the North Macadam corridor. Metro may have no choice but to implement a buffer of that size to meet those requirements. It is too early in the Endangered Species Act process to know everything that will be required.

8.  ORDINANCES –SECOND READING

8.1  Ordinance No. 00-882A, For the Purpose of Amending the Regional Framework Plan,

Ordinance No. 97-715B, Regarding Housing and Affordable Housing including Policy Section 1.3 and Amendments to the Urban Growth Management Functional Plan Titles 7 and 8, Ordinance No. 96-647C

Councilor Washington reviewed the history of the ordinance and the Affordable Housing Technical Advisory Committee (H-TAC). A memo from Mr. Cotugno to Presiding Officer Bragdon, regarding Ordinance 00-882A, contains information presented by Councilor Washington and is included in the meeting record. He said the Metro Policy Advisory Committee (MPAC) will review the ordinance on December 13, and the Metro Council will take final action December 14, 2000.

Mr. Cotugno clarified that the ordinance was amended after the agenda packets were printed, and the council was now considering the "A" version, a copy of which is included in the meeting record. The "A" version contained two amendments: one to include the methodology used for calculating the affordable housing goals, and the second to strengthen Metro’s commitment by changing the wording in the Function Plan from “Metro may consider the following actions. . .” to “Metro will consider the following actions….” At its last meeting, the Metro Technical Advisory Committee (MTAC) recommended another amendment, which would make the ordinance a "B" version. Staff supported MTAC's recommendation. A memo from Mr. Cotugno to Presiding Officer Bragdon, regarding MTAC recommendations – Affordable housing, includes information presented by Mr. Cotugno and is included in the meeting record.

Presiding Officer Bragdon opened a public hearing.

Sheara Cohen, Community Development Network, 2726 Northeast Martin Luther King Jr. Boulevard, Second Floor, Portland, referred to written testimony submitted by Tasha Harmon, copies of which are included in the meeting record. She said a few issues remain outstanding. She noted that there have been changes to Section 1.3.6b, which although not significant, might require attention.

Mr. Morrissey said Diane Luther, who had testified at the Growth Management Committee public hearing, had told him both she and Ms. Harmon were satisfied with the amended version of the ordinance.

Louise Weidlich, Director, Neighborhoods Protective Association, Post Office Box 19224, Portland, said her group strongly opposed housing that is “unaffordable” to the taxpayer. Affordable housing was not only subsidized at public expense, but was removed from the tax rolls. It violated the Constitution and the Bill of Rights: “No law shall be passed granting to any citizen or group of citizens privileges or immunities that do not belong to all citizens.” This had been forgotten in favor of what was fair [sic]. Affordable housing was being brought in to avoid a rebellion against high taxes. She opposed public housing above the libraries because the people who could afford to live there will move out when the other people come in drunk and do not behave. Libraries should not be mixed with housing.

Presiding Officer Bragdon closed the public hearing.

Councilor Monroe said the “B” version was clearer than the “A” version, and he understood that the changes were not substantive and would not require another public notice.

Presiding Officer Bragdon said consideration of the ordinance would continue until December 14, when the Council would take final action.

Councilor Washington thanked Councilor Monroe for moving the “B” version. He noted that had it not been for Councilor Monroe’s return to the council in January of 1998 and support for this issue, H-TAC would not exist and this ordinance would not be before the council.

Councilor Atherton asked Mr. Cooper what Section I meant, which read “provide a legal opinion on Metro’s authority on the implementation of system development charges, permit fees, and offsite improvement strategies.”

Mr. Cooper said he could not answer that question because had not done the work.

8.2  Ordinance No. 00-887A, For the Purpose of Establishing a Procedure for Review of Application for Property Owner Compensation under Article 1, Section 18 of the Constitution of Oregon (Ballot Measure 7 Passed November 7, 2000) and Declaring an Emergency

Presiding Officer Bragdon said due to the injunction, the council would delay action on Ordinance No. 00-877A until January 2001, at the earliest.

9.  RESOLUTIONS

9.1  Resolution No. 00-3010A, For the Purpose of Adopting the Capital Improvement Plan for Fiscal Year 2001-02 through 2005-06

Councilor McLain presented the resolution. A committee report to the resolution contains information presented by Councilor McLain and is included in the meeting record.

Presiding Officer Bragdon opened a public hearing. No one came appeared to speak with regard to Resolution No. 00-3010A. Presiding Officer Bragdon closed the public hearing.

11.  COUNCILOR COMMUNICATIONS

Councilor Atherton thanked the television crew from Tualatin Valley Community Access for staying late to film the meeting. He added in regard to Measure 7, that if development had to pay its own way, governments would be rolling in dollar bills, but they are not. Increased property taxes from development did not pay for the full costs of growth.

Councilor McLain reported that she attended a meeting of the Regional Water Consortium last night. The group has started to update the regional water supply plan, which Metro is required by charter to have in its Regional Framework Plan. Updating the regional water supply plan will assist Metro in its future urban growth boundary and service provision decisions. She was working with Mr. Cotugno and Peggy Coats, Council Analyst, on the budget implications of joining the effort to update the regional water supply plan.

Presiding Officer Bragdon noted that due to the pressing business before the council, there would be a special council meeting at 2 p.m. on Tuesday, December 12, 2000.

ADJOURN

There being no further business to come before the Metro Council, Presiding Officer Bragdon adjourned the meeting at 7:00 p.m.

Prepared by,

Chris Billington

Clerk of the Council

The following documents were submitted to the record at this meeting: