MINUTES OF THE METRO COUNCIL COMMUNITY PLANNING COMMITTEE MEETING

Tuesday, March 5, 2002

Council Chamber

Members Present:  Rod Park (Chair), Bill Atherton, David Bragdon, Carl Hosticka, and Susan McLain.

Members Absent:  Councilors Rex Burkholder and Rod Monroe.

Chair Park called the meeting to order at 2:05 p.m.

2.  Consideration of the Minutes of the February 21, 2002, Community Planning Committee Meeting.

3.  Related Committee Updates.

•  Transportation – Councilor Burkholder was in Washington, D.C., so there was no update.

•  JPACT – As Councilor Monroe was also in Washington, D.C., there was no update.

•  WRPAC – The next scheduled meeting for WRPAC would be March 18^th, Councilor McLain reported, and they would be looking at some of the Goal 5 issues, dealing with the RFP for the ESEE analysis, and also issues that would come out of the Natural Resources Committee.

•  Natural Resources – Councilor McLain said this committee would be dealing with both the Goal 5 and ESEE RFP issues, as well as an ordinance having to do with the solid waste fee that would also come before the Solid Waste and Recycling Committee. There would be public testimony heard by both of those committees on that ordinance.

4.  Resolution No. 02-3171 – For the Purpose of Directing the Executive Officer to Submit a Petition to the Land Conservation and Development Commission for a Declaratory Ruling Under ORS 183.410 on the Application of Goal 14 and ORS 197.298 to the Expansion by Metro of the Urban Growth Boundary.

Ms. Mary Weber, Community Development Manager, Planning Department, began by stating that the Periodic Review work program approved almost two years ago specified that a subregional analysis could be considered based upon a need to expand the UGB, and an analysis conducted. Because of the complexity of the issue, it was identified in the work program and additional guidance and clarification would be sought on how to determine subregions, and this resolution was the step forward in that context. Staff worked with legal counsel, MTAC, MPAC and this committee to work up a methodology they thought was a sound approach to do a subregional analysis and fairly good performance measures. The recommendation at this point was to forward this methodology with a series of questions to the Land Conservation and Development Commission (LCDC).

Chair Park asked Mr. Benner, Senior Legal Counsel, to first explain, as background information for the committee, the difference between the Goal 14 questions and the statutory questions and why they were separated. Mr. Benner said the principal state law that applied came from Goal 14 among the statewide planning goals and a couple of statutes. Neither of these stated in any express fashion whether one could do an allocation of housing and jobs by subregion or not. In order to get some sense of certainty for this, one would really need to know how Goal 14 would apply in that case, and how a couple of particular statutes would apply. LCDC was the keeper of the Goals and was in the best position to tell Metro whether Goal 14 allowed subregional analysis, etc., so that’s why some of the questions had to do with how Goal 14 might apply to the proposed methodology. Also, ORS 197.298 established a priority of land to come into the Urban Growth Boundary (UGB), and it stated that higher priority land is taken in before lower priority land. It doesn’t say in the statute, in a situation like Metro’s, whether you must apply that priority around the region without regard to growth centers or other subparts of a region, or if perhaps you might be able to apply the priority on some other basis to a part of the region. The statute doesn’t say this can or cannot be done. This was why Metro would pose questions under both the Goal and the statute, to get a sense whether this proposed methodology would be acceptable.

Chair Park next asked Mr. Benner to explain how the Goal 14 questions related to the statute questions, and how it all related to prior work by LCDC but not adopted in their Goal 14 rewrite.

Mr. Benner said if Metro posed all the questions to LCDC and some of those were statutory questions, the likely result would be that LCDC would consult with the Attorney General’s office to help them respond to those questions. The contemplated Goal 14 questions were an attempt, because Metro has not yet done a subregional analysis and can’t send a subregional analysis to the agency, to try to elicit a determination by the agency on what the parameters might be. It would be good to get feedback from the agency on the scope and the range of what the subregional analysis might be. On the ORS 197.298 questions, the principal thing Metro needed to know was if housing and jobs were allocated on some basis other than just regionwide wherever the land was available, can the priorities be applied based upon that subregion.

Mr. Benner cautioned that if too many questions were asked of LCDC, it could become complicated and it would be less likely they would be able to answer them at all or in a timely fashion.

Chair Park told the committee he thought the focus of these questions was the basis on which Metro would determine subregions and the borders of such. Once that was established, the other pieces Metro was interested in could be looked at through MetroScope and other tools.

Responding to a question from Councilor Hosticka, Mr. Benner said industrial land could be included in the employment land reference in question 8 of Exhibit A. Councilor McLain said she looked at the Exhibit A questions as the first level, and when or if those were answered, there would be more. She said these questions were very clear but that it would be inappropriate for Metro to move forward if the questions were not answered.

Chair Park opened a public hearing and invited testimony from the audience.

1.  Mary Kyle McCurdy, 1000 Friends of Oregon, 534 SW Third Ave., Portland, OR 97204, said it was not a good idea to submit these questions, for a number of reasons (her written comments are included as part of this record).

Councilor McLain and Ms. McCurdy discussed their differing viewpoints. Councilor Hosticka added that Metro couldn’t get guidance from LCDC unless they asked for it. Ms. McCurdy said Metro was likely to get appealed, whatever they did but agreed that they couldn’t operate just trying to avoid litigation, as Councilor McLain said.

2.  Kelly Ross, Homebuilders Association of Metropolitan Portland, 15555 SW Bangy Rd., #301, Lake Oswego, OR 97035-3297, said the Homebuilders Association supported the continued pursuit of subregions as a possible tool in the toolbox for how to deal with the region’s growth, and they also supported any effort that would reduce the risk judicial intervention. He commented on the Declaratory Ruling, saying he was just learning about this process. As an interested party with an interest in the eventual ruling, he requested for the record that the Homebuilders Association be included on the interested party list submitted to LCDC. Mr. Ross also raised a concern about the timeframe in this process, that it could be a four to six month process before LCDC made a ruling, and even then there was the option for appeal. He said he’d asked Mr. Benner about alternative methods for this process and suggested the committee explore those with Mr. Benner. Mr. Ross’ last comment was that, according to the rules, the petition needed to include a detailed statement of the relevant facts surrounding the issue, and he wondered what the process would be to adopt the facts, i.e., what would be the process for getting input on those facts. Would it go to MTAC or MPAC, he asked.

At Chair Park’s request, Mr. Benner outlined the steps that would be taken. The first, he said, would be to submit the petition to LCDC. The form and/or contents were specified by the rule of the Department of Justice in that Metro would state the questions being posed for the agency, state what Metro thinks the answer ought to be, give a basic statement of facts (which was the basis for the analysis), list the names and addresses of persons who might be interested in the outcome, give the name of the petitioner who was responsible – it was not a long and detailed document, he said. If LCDC decided it would entertain the questions and answer them, they would likely set the matter down for a hearing and that would give an opportunity to Metro and anybody who wanted to participate to write something and make arguments, both written and orally. Mr. Ross’s question about the process would be addressed in the next step, if the commission accepted the petition and set a hearing. Mr. Ross reiterated his suggestion that the committee look at alternatives to receiving direction.

Chair Park closed the public hearing.

Regarding the format of submission, Chair Park asked if Exhibit A would be refined. Mr. Benner said he anticipated assembling the petition following LCDC’s format and attaching the most recent version (February 20) of the methodology document (including any amendments that may have come out of MPAC) since the questions in Exhibit A refer to that document. Ms. Weber said the methodology document would stand. Chair Park asked if the methodology piece should be attached to the resolution as Exhibit B, and Ms. Weber said she concurred. Councilor McLain agreed.

In discussion on the amendment, Councilor McLain said that while she respected Ms. McCurdy’s and Mr. Ross’ testimony, she explained why she felt it important to include Exhibit B to the resolution, that Metro had its objectives down in many places and was now asking for guidance.

Discussion on the main motion focused on Metro’s modest investment of resources for guidance and that there was no guarantee that there would be no lawsuit. Councilor Atherton said the situation struck him as being similar to a general rule used when flying an airplane in that you’re in charge and you can violate any rule as long as you have a safe flight and have a good outcome, although you need to explain yourself later. Using the same analogy, Chair Park said Metro was ready to take off and needed to ask a few questions first. The key question, he said, was what does Metro base subregions upon and the Exhibit A questions would bring to LCDC the types of issues Metro was wrestling with as a region. Before Metro could argue about what to do next, we need to make sure everyone is looking at the same pieces, he said. Councilor Atherton said he thought that was the level of ambiguity Metro was trying to avoid, except for the farm land question. Because of the farm land, he would agree to submit this to LCDC.

5.  Exceptions Process, Draft Ordinance. Ms. Brenda Bernards, Senior Regional Planner, Planning Department, first updated the committee on the extensions they’d granted in December 2001. One of the conditions imposed was quarterly reporting, she said, in the form of letters reminding the jurisdictions that they needed to report. This quarter was ending March 31^st, she said, and those letters would be sent to the jurisdictions this week and staff would bring the results back to this committee in April.

She then spoke on the distributed piece, Title 1, Table 1 Compliance-February 27, 2002 – Dwelling Unit Capacity, and on the reverse side, Employment Capacity (made a part of this record). MPAC had taken a quick look at it, she said, and MTAC would see it the following day and they may give advice on how to proceed with the process. This was for discussion only at this point, Chair Park said.

Chair Park summarized the two options in Exhibit A to the draft resolution: Option 1 would be very specific to each individual jurisdiction, and Option 2 would be a more generalized way of looking at the regional target. Mr. Benner agreed with Chair Park's summary. He added, however, that it was worth considering that these were only two of the ways of accomplishing this, and that it was very possible the MTAC discussion the following day would lead to revision.

Discussion followed on the targets, on making Metro's partners accountable and what was fair and realistic, and whether compliance was a local or a regional issue. Chair Park and Ms. Weber discussed how the jurisdictions were doing with regard to single-family neighborhoods and centers, and whether capacity was being lost.

Chair Park said this was not on a fast timeline, and after going through the MTAC/MPAC process it would come back before this body. Councilor McLain said she didn't want to make any decisions on this until the previously approved extensions had run their course, and she wanted that made clear to MPAC. Chair Park said some wrap-up would be needed for the analysis, but Councilor McLain said she would not consider something if this weren’t finished.

Councilor Hosticka asked for an explanation of how this worked with Periodic Review and said he would rather have this done correctly since there was no time sensitivity. Ms. Weber and Mr. Benner explained how Task 1 was concluded and what staff had done since. Table 1 as it stood needed to be retired or replace, Ms. Weber said. Mr. Benner added that one way of thinking about the analysis of the capacity of the UGB was that you wanted the best information you could get about how many jobs and how many housing units can fit into the UGB under today’s zoning and planning designations. Whatever information comes in along the way, before you make the final decision, you not only need to know how much capacity to add to accommodate the people you expect to come, you have to increase capacity for the amount you missed. Mr. Benner added that Table 1 was thought of as a Metro measure, and there was an expectation in the statute and from LCDC that Metro would tell people how they did on these measures. If Metro didn’t meet the measures, why not and what would they do about it. Mr. Benner said Metro would develop a new measure in Periodic Review, but that people would be interested in how they did with the old measure. He said Metro needed to insure that what local governments did to achieve or get close to their targets was protected in the next phase, and that could be accomplished by one of several ways of putting what’s been accomplished in Title 1.

Chair Park thanked staff for their explanations and discussion.

6.  Councilor Communications. None.

7.  Adjourn.

There being no further business before the committee, the meeting adjourned at 3:43 p.m.

Respectfully submitted,

Rooney Barker

Council Assistant

ATTACHMENTS TO THE PUBLIC RECORD FOR THE MEETING OF MARCH 5, 2002

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

Testimony cards.

1.  Mary Kyle McCurdy

 1000 Friends of Oregon

 534 SW Third Ave.

 Portland, OR 97204

2.  Kelly Ross

 Homebuilders Association of Metropolitan Portland

 15555 SW Bangy Rd., #301

 Lake Oswego, OR 97035-3297