MINUTES OF THE METRO COUNCIL GROWTH MANAGEMENT COMMITTEE
Tuesday, December 5, 2000
Council Chamber
Members Present: Rod Park (Chair), Susan McLain, Rod Monroe
Others Present David Bragdon, Ed Washington
Members Absent: None
Chair Park called the meeting to order at 3:15 p.m.
1. CONSIDERATION OF THE MINUTES OF THE NOVEMBER 21, 2000, GROWTH MANAGEMENT COMMITTEE MEETING
Motion: | Councilor Monroe moved to adopt the minutes of the November 21, 2000, Growth Management Committee meeting. |
Vote: | Chair Park and Councilors McLain and Monroe voted yes. The vote was 3/0 in favor and the motion passed unanimously. |
2. ORDINANCE NO. 00-887, FOR THE PURPOSE OF ESTABLISHING A PROCEDURE FOR REVIEW OF APPLICATIONS 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.
Larry Shaw, Senior Assistant Counsel, introduced the ordinance and explained the rationale behind its development. He said not much is known yet about how the measure will be implemented and what it will mean, but unless the courts intervene, it is scheduled to take effect on December 7, 2000. Because of that, Metro should have a procedure in place for processing claims. This ordinance, which would be adopted with an emergency clause, would outline a procedure to address claims that could conceivably come in on December 8.
Other jurisdictions have begun developing a wide variety of such procedures. A memo dated November 30, 2000, gives examples of five of those procedures. (The memo has been attached to the meeting record). The procedures take one of two major approaches: 1) treating claims as quasi-judicial land-use decisions, or 2) treating them as budgetary decisions. Metro has taken the budgetary decision approach. However, this ordinance would act only as placeholder pending interpretations from the Attorney General’s office and interpretations by the courts.
The ordinance outlines processes for dealing with complete and incomplete claims, anticipating that some individuals might refuse to complete the application process as required yet have a valid claim for which Metro would still be liable. Metro would be liable not only for paying a valid claim, but if the 90-day timeline were not met, Metro would also be liable for attorney’s fees. The procedure in the draft ordinance provides for a pre-hearing to sort out potentially valid claims so those claims could be processed quickly to avoid the attorney’s fees.
Dan Cooper, Metro General Council, added that this ordinance does not imply that the Metro Council would be making decisions to wave requirements that are not Metro’s to wave—i.e., those that are matters of state or federal law.
Councilor McLain referred to a memo from attorney Richard Benner on Measure 7 that explained that all existing land use laws still apply. (A copy of the memo has been attached to the public record.) The memo makes it clear that the measure does not repeal any land-use or environmental rules or laws. She wanted to make sure that this ordinance would not allow variances to be granted that would violate existing regional or state laws or regulations.
Mr. Cooper said that Metro would not likely be on the front line for claims, because Metro’s policies have not directly restricted property; rather, they give direction to local governments. The local governments, therefore, would most likely bear the burden of any restrictions. In addition, local governments adopt restrictions in response to Metro’s ordinances less frequently than they do in response to state mandates or to their own ideas of good policy.
Councilor McLain asked about instances such as where Metro promised to support local jurisdictions in, for example, Title 3 enforcements that involved “takings.†She wanted assurance that Metro would be staying away from any instances that would be considered takings.
Mr. Cooper said that when Title 3 was adopted in March of 1998, the law of takings was better understood. Title 3 was written to avoid takings under that law, and Metro promised to help jurisdictions defend against claims knowing that the title had been written to avoid takings as defined. Measure 7 is so unclear that no one knows exactly what would constitute a taking now.
Councilor McLain said she did not want to have it appear that Metro would allow local jurisdictions to grant variances that would violate state law.
Councilor Bragdon noted an apparent dilemma, in that the state constitution might require enforcement of a law that involves takings but through Measure 7 leave no other option but to pay. He asked if Mr. Benner’s letter addressed that issue and how to avoid that box.
Mr. Cooper said Mr. Benner’s letter was attached to another letter, dated November 15, 2000, from the state attorney general’s office. The attorney general’s office advised state agencies 1) that the measure was not yet in effect, so no jurisdiction had yet to handle a claim; and 2) the measure did not repeal any laws, it simply set a new process in motion. Until something different has been decided, the letter advised everyone to assume that existing state laws remain in effect. Mr. Cooper said that legal authorities are currently working on a more formal opinion, and the interpretation might be different once their work is finished.
Councilor Bragdon clarified his question: If state law says you must regulate but the constitution says you may either regulate or pay, then is your only option to enforce and pay?
Mr. Cooper said that question illustrates the complexity of this measure and the difficulty in interpreting it. He added that if the measure is determined to affect more than one part of the constitution, it would be held invalid as a multiple amendment.
Motion: | Councilor McLain moved to recommend Council adoption of Ordinance No. 00-887A. |
Councilor Bragdon presented two suggestions of Councilor-elect Burkholder’s, as a courtesy to him: 1) that a claim filing should be considered complete only when all required documents have been filed; and 2) that the filing fee should not be refunded, even for successful claims; rather it should be retained to cover the agency’s actual costs of processing the claim.
Vote: | Chair Park and Councilors McLain and Monroe voted yes. The vote was 3/0 in favor and the motion passed unanimously. |
Chair Park will carry the ordinance to a meeting of the full Council.
3. RESOLUTION NO. 00-3016, FOR THE PURPOSE OF CLARIFYING EXCEPTIONS TO THE URBAN GROWTH MANAGEMENT FUNCTIONAL PLAN ORDINANCE NO. 96-647C AND OBJECTIVE 5.3 OF THE REGIONAL URBAN GROWTH GOALS AND OBJECTIVES
Mary Weber, Manager, Growth Management Department, explained why this work was before the committee again. She referred to the staff report that accompanies this resolution in the agenda packet.
Brenda Bernards, Senior Regional Planner, Growth Management Department, explained the compliance process and the conditions under which an exception might be granted. (See page 4 of the staff report.)
Chair Park asked about criteria number 5 that refers to a city’s ability to annex land. Would the exception depend on the city’s ability to or not to annex more land?
Ms. Bernards said the question would be whether the exception would apply to newly annexed land as well as land that was within the jurisdictional boundary at the time the city applied for the exception.
Councilor McLain said she approved of the six criteria. She asked for clarification on the review procedure for considering exceptions—how would staff work with other jurisdictions and with the public when considering whether to grant an exception?
Ms. Weber said a staff person who had been working with that jurisdiction and who had extensive knowledge about its situation would do the review. Based on that knowledge, that staff person would then follow up on any questions the application might raise. Both MPAC and the Council would also hold hearings on such considerations.
Councilor McLain said that a constituent had requested of her that Metro’s processes be understandable to the public. She asked that the committee holding hearings early in the process, before applications go to MPAC. She asked that Metro’s support for the public process be made clear.
Ms. Weber said the Council would receive the request first and then send it to MPAC. The Council would be free to hold as many hearings as it wished. It could also request that MPAC hold hearings and prescribe the notifications and hearings processes. She added that the proposed process for granting applications would be considered by MTAC soon, and MTAC’s input would be incorporated into the prescribed process.
Councilor McLain said for the record that she was still working on her position on the map changes. She said she saw the map process and the exceptions process as connected, although they were distinct issues. She wanted to be sure that the jurisdictions as well as the general public understood both processes and their connection.
Chair Park said the map amendments would need to wait until Measure 7 issues were clarified.
Councilor McLain said some changes were clearly corrections of mistakes based on lack of information, and others had policy implications. The ones that had policy implications were the ones that concerned her.
4. ORDINANCE NO. 00-882, 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.
Gerry Uba, Planner, Growth Management, referred to the discussion of the last meeting in which he stated that the ordinance reflected what the H-TAC report had recommended. Since the last meeting, staff had received a number of comments, six of which it had agreed to respond to by making changes in the language of the ordinance. (The comments and the staff’s responses are explained and delineated in a memo attached to the meeting record.) Staff had also made four additional changes. The memo identifies where those changes would appear in the functional and framework plans.
One major change came in response to discussions at MPAC where cities had objected to language that seemed to require changes to their comprehensive plans to include affordable housing production goals. That language was removed, so the cities now may adopt affordable housing goals by resolution and not have to change their comprehensive plans.
Councilor McLain asked Mr. Shaw what the legal difference would be between putting forth the goals by resolution as opposed to including them in a comprehensive plan.
Mr. Shaw said the housing production goals were clearly targets. Because they were targets, there would not be much legal difference. The goals could be put into comprehensive plans, but that would not be required.
Councilor McLain noted that a resolution could be easily changed by writing a new one, whereas a comprehensive plan requires a more extensive process. Therefore, targets contained in a comprehensive plan would have more status than those established by resolution. She wanted it to be on the record that Metro had acted in accord with H-TAC’s recommendation—i.e., that the goals be in the form of targets and incentives rather than requirements.
Chair Park asked when the targets were to be reviewed—at the beginning or the end of 2003.
Mr. Uba said toward the end of 2003. No date has been established, just the year.
Mr. Morrissey asked Mr. Uba if Title 7, section 3.07730 was the only place where Metro requires cities to change their comprehensive plans.
Mr. Uba said yes, and that reflects H-TAC’s recommendations.
Chair Park opened a Public Hearing at 4:05 PM.
Diane Luther, Executive Director of Northwest Housing Alternatives, 2316 SE Willard, Milwaukie, OR 97222, thanked Metro for allowing H-TAC to do its work. She said was she confused about the status of the goals. She thought her recommendation was to require jurisdictions to adopt the goals, but the language still reads, “should adopt.†She thought it would not be burdensome for those cities that have other work to complete to include the goals in their comprehensive plans.
Tasha Harmon, Community Development Network, 802 SE 27th Ave, Portland, OR 97214, said not all of H-TAC’s intentions were adequately reflected; for example, the staff’s comments on number 4, where she had said 1.3.6 of exhibit A needed to be strengthened should read, “Metro shall take the following actions,†rather than “may consider….†The “consider†part is already contained in the wording of the list that follows. In 1.3.6b, where local jurisdictions’ actions are outlined in the framework plan, the language should read, “ the Metro Council shall amend …to require local jurisdictions to…†The language in that section seems inconsistent with the new language of the functional plan, which on page 3 requires local governments to consider those amendments. Finally, the draft does not describe the methodology by which the housing production goals were created. She stressed the importance of including the methodology and accompanying rationale in the ordinance. (A letter from Ms. Harmon detailing related issues has been attached to the public record.)
Chair Park asked Mr. Cotugno if the methodology could be attached to the ordinance.
Mr. Cotugno said he saw no problem with including it for the goals that have numbers attached to them.
Chair Park closed the public hearing at 4:15 PM.
Motion: | Councilor McLain moved to amend Ordinance No. 00-882 to include the methodology in an appendix. |
Councilor McLain said she would like the methodology included because the Council supported it. Also, because the Council can have new members every couple of years, it would be important to be able to trace back how the numbers had been calculated.
Vote: | Chair Park and Councilors McLain and Bragdon voted yes. (Presiding Office Bragdon sat in for Councilor Monroe, who was absent for the vote.) The vote was 3/0 in favor and the motion passed unanimously. |
Councilor McLain said she had hoped for a stronger document, and she thought the word “may†weakened the conviction. As a former budget chair, she appreciated having the flexibility those words convey, but she thought “consider†provided enough flexibility.
Mr. Cotugno said “may†was put in there for exactly that reason—to allow budget flexibility.
Motion: | Councilor McLain moved to recommend Council adoption of Ordinance No. 00-882. |
Vote: | Chair Park and Councilors McLain and Bragdon voted yes. (Presiding Office Bragdon sat in for Councilor Monroe, who was absent for the vote.) The vote was 3/0 in favor and the motion passed unanimously. |
Councilor Washington will carry the ordinance to a meeting of the full Council.
5. PERFORMANCE MEASURES
Mr. Uba distributed a cover memo from Mr. Cotugno, dated December 5, 2000, with Attachment A, which summarizes 2040 Fundamentals, and Attachment B, which presents a draft matrix for developing performance measures. The performance measures are being designed to help Metro determine how well it has done toward achieving 2040 goals. The draft matrix represents an attempt to establish priorities and identify appropriate measures. Next, data would be collected and analyzed, benchmarks established, and finally a report issued. Mr. Uba pointed out that not every 2040 fundamental would have an associated “outcome indicator.†(The memo and the two attachments have been attached to the meeting record).
Mr. Cotugno emphasized that the matrix was a work in progress, and the purpose of discussing it at this time was to try to agree on the goals of the performance measures, then to try to figure out if those goals could be measured in the manner suggested. He noted the difference between output and outcome: output meant how much of what Metro wanted to implement had been implemented; outcome meant how effective it has been.
Councilor McLain noted that people are bound to disagree on the priorities, but that was part of the progress. She praised the staff for making sense of a huge concept.
Councilor Bragdon asked if the performance measures would include comparisons between this region and other regions in the country. He noted that many of the outcomes might depend on factors unrelated to 2040, such as housing starts and interest rates.
Mr. Uba said that would be included in the benchmarks.
Councilor Bragdon noted that the area relating to the economy seemed skimpy and mostly related to parks. He suggested measures be added that relate to job or income or other measures that reflect the economy.
Mr. Cotogno said that section was incomplete; its contents reflect the departments with which staff had had brainstorming sessions. He said staff was considering adding qualitative as well as quantitative measures once appropriate qualitative measures have been identified.
Chair Park suggested adding a measure of affordability to the formula. He noted that some visions might be wonderful but unaffordable.
Councilor McLain said she hoped the performance measures would be ready for public introduction during the re-engagement effort for 2040. She said a method was needed for the public to provide input into how 2040 has been working.
Mr. Cotugno said that was the reason this tool was being created.
6. MPAC EMPLOYEE DISCUSSION
Chair Park, who is the Metro Council’s liaison to MPAC, commented on the ongoing discussions the committee has been holding on regional employment issues that might be affected by Metro’s policies. He noted that the employment discussion held at the last MPAC meeting had provided valuable information on regional economic sectors. He asked Mr. Cotugno to come forward to provide more details.
Mr. Cotugno distributed a schedule of MPAC’s discussions, with a brief summary of what topics were being discussed when (attached to the public record). He said he would like feedback on where the policy issues lie in the discussion held so far. The objective would be to identify the areas that staff, the Council, and MPAC ought to address with regard to employment. He would also like feedback on the kind of conversation the Council would like to have on employment. So far, the discussions have centered on the how to define the employment situation; the next steps would focus on what the situation means and what Metro’s role should be.
Chair Park asked if anyone had made a concerted effort to attract only environmentally clean industries and to make that an explicit regional policy.
Mr. Cotugno said that has not as yet been explicit; however, there are regulations and permit requirements that control the kinds of industries that can come here. Nothing names particular industries, but all must meet certain standards.
Councilor McLain said that the Regional Urban Growth Goals and Objectives (RUGGOs) and other guiding documents make it clear that both the environment and the economy matter. She said that in the past MPAC had discussed targeting particular industries and most recently discussed which industries have been invited to locate here. She said that some industries that have been turned down might not need to have been; rather, they might have needed to be presented with incentives to locate here under different conditions—say with less acreage or a different way of addressing the need for providing parking.
Councilor Bragdon said that at the November 29, 2000, MPAC meeting, a representative from the state’s economic development department discussed targeting “key industries,†chosen for their compatibility with Oregon’s strategic strengths and desire for quality of life. He suggested that environmental factors were considered in that, but he had not heard of offering environmental incentives per se.
Councilor Atherton noted that existing environmental laws were not enforced, particularly those relating to clean water.
Mr. Cotugno said he was looking at a different question. His question was whether Metro develop policies to guide which types of industries were encouraged to locate here. For example, should Metro take into consideration consider whether the company pays a living wage to most of its workers when deciding whether to approve the company’s request to build a large parking lot?
Councilor Bragdon suggested that representatives from the private sector be invited to provide input on how well regional centers and mixed-use centers have worked.
Mr. Cotugno said that business has not been included and it should be. He said industrial partners had provided input on the industrial lands supply, but the valid parts of their results were obscured by their suggestion that the supply needed to be increased by some 300%. He said the underlying information, however, was valuable and should be re-examined. He thought the limitations and barriers identified for existing lands ought to be re-evaluated with an eye toward developing solutions. That would be the discussion on December 13. The January 24 discussion would be on mixed-use centers.
7. COUNCILOR COMMUNICATIONS
There being no further business before the committee, Chair Park adjourned the meeting at 5:12 p.m.
Respectfully submitted,
Pat Emmerson
Council Assistant
ATTACHMENTS TO THE PUBLIC RECORD FOR THE MEETING OF DECEMBER 5, 2000
The following have been included as part of the official public record:
ORDINANCE/RESOLUTION | DOCUMENT DATE | DOCUMENT DESCRIPTION | DOCUMENT NO. |
Ordinance No. 00-887 | No date | “A†version of the ordinance. | 120500gm-1 |
11/30/2000 | Memorandum summarizing draft claims procedures from other jurisdictions. | 120500gm-2 | |
12/1/2000 | Memorandum from Richard Benner to LCDC RE: Measure 7 | 120500gm-3 | |
Ordinance No. 00-882 | 12/5/00 | Memorandum from Andy Cotugno to Rod Park, with attachments: comments and staff responses | 120500gm-4 |
12/5/00 | Memorandum from Tasha Harmon to Growth Management Committee regarding ordinance language. | 120500gm-5 | |
Performance Measures | 12/5/00 | Memorandum from Andy Cotugno to Rod Park, with attachments: draft matrix of performance measures | 120500gm-6 |
MPAC Discussion of Employment | No date | Schedule of MPAC discussion and summary of topics | 120500gm-7 |
Ordinance NO. 00-887 | 1252000 | Letter from Robert Liberty, 1000 Friends of Oregon, to Metro Council on Measure 7 | 120500gm-8 |
Testimony cards
Diane Luther
Tasha Harmon