MINUTES OF THE METRO COUNCIL

COMMUNITY PLANNING COMMITTEE REGULAR MEETING

Tuesday, July 16, 2002

Metro Council Chamber

Members Present:  Rod Park (Chair), Bill Atherton (by telephone), David Bragdon, Rex Burkholder, Susan McLain, and Rod Monroe

Members Absent:  Carl Hosticka (excused)

1.  CALL TO ORDER AND ROLL CALL. Chair Park called the meeting to order at 2:05 p.m.

4.  CONSIDERATION OF THE MINUTES OF THE JULY 2, 2002, COMMUNITY PLANNING COMMITTEE MEETING.

3.  RELATED COMMITTEE UPDATES.

•  Transportation Committee. Councilor Burkholder said that the Transportation Committee would be considering Resolution No. 02-3206, For the Purpose of Adopting the Policy Direction, Program Objectives, Procedures and Criteria for the Priorities 2003 Metropolitan Transportation Improvement Program (MTIP) and Allocation of Flexible Funds at the July 18^th Transportation Committee.

•  JPACT. Councilor Monroe said Joint Policy Advisory Committee on Transportation (JPACT) met and discussed regional support for making sure that MTIP fully supported the 2040 process and goals. They also had an excellent presentation on freight mobility and the importance of freight and its mobility to the economy of the region. The region was absolutely dependent upon our ability to have networks that moved freight and the intermodal connection between trucks, rail, barges and ships. Nearly 80% of freight was moved by truck. The percentage of freight moved by truck was likely to increase. It was critical that we continue to fix our highway system in a way that allowed for freight mobility and that we continue to build a mass transit system that took more pressure off the highways to free up lane space for freight. JPACT will meet August 8^th.

•  Natural Resources Committee. Councilor McLain reported that the Natural Resources Committee would meet on July 17^th and again on July 31^st to deal mainly with the wildlife inventory. They were dealing with some of the questions and comments that had been made. There had been about 45 comments made, staff would be reporting back and making suggestions for possible amendments.

•  WRPAC. The Water Regional Policy Advisory Committee met this week and dealt with the wildlife inventory. They passed a motion suggesting the advice that they include all of it as significant, including the ones. It was an 8-to-6 vote. There were some that were in the minority in going with the Executive Officer's recommendation.

4.  Periodic Review Recommendations – Products/Workbooks. Mary Weber, Planning Department, introduced a copy of the schedule of products (a copy which is included in the meeting record). The bulk of the products were in their final edit stage. They were right on schedule. She asked for Council's feedback on what materials they wanted on the list as well as items that were not on the list. She said they had added a summary of comments by study area and all of the open house surveys by study area. They would pull them together and do a non-technical summary of public opinion of the property owners and those that were potentially effected by an area.

The staff was proposing a binder format with the Executive Officer's recommendation, a series of maps (platte and aerial) for each area, residential and employment urban growth reports, 2040 refinement report which was the policy piece that looked at potential changes in Metro’s policies, and a number of other pieces, such as, specific details on schools.

She said the products were about 90% done, with over 350 pages currently. They had expanded the study areas to 94. They would be adding a platte map, an aerial for each area. She asked for direction concerning what information the councilors wanted in their binder, for example, several copies of the citizen comments could be provided for Council review rather than making copies for each individual councilor.

Councilor Burkholder said the most useful would be a reader's digest condensed version with more detailed reference materials that would be available if he needed further information. What was critical was that he reviewed the information.

Councilor McLain wanted a copy of everything organized by study area. Also, she needed to have the technical reports, the alternative lands analysis that went along with each study area. She would be happy to share her copy with others if they didn't want the full version. They needed all of the technical work, maps, bi-study comments and public testimony, but the one that didn't seem to be part of this same document was the policy changes that would be necessary to Metro's foundational documents such as the Regional Framework Plan and the Functional Plan. Ms. Weber said that would be in the book. Councilor McLain said she thought the policy conversation was in and of itself a whole formal conversation. Ms. Weber said the way the report was put together was that that discussion was at the front end of the report, then, they got into detail about specifics on centers, industrial lands. She said Mr. Richard Benner, Legal Counsel, had drafted recommended Code language. That would match the policy directions that had been formed. Councilor McLain said she would like to see them in segmented conversations. Ms. Weber said that all of the material would be ready for Council on August 1^st.

Councilor McLain added that she would be happy to read whatever Mr. Benner had written but the Code changes were Metro Council code changes and they would take legal advice but this was an independent conversation Council should have. She hoped the Chair would plan for discussions about what was not tied to periodic work plan. There were certain things they still had options and choices on when it effected an amendment to the Regional Framework Plan or the Functional Plan, those were definite Council choices. Even if it was a Code change, it was still a council choice.

Chair Park said the Code changes were ones that were required in order to make Mr. Mike Burton's, Executive Officer, recommendation stick. That would be the basis of the changes. He would not anticipate anything beyond that. Councilor McLain said that might be Mr. Burton's recommendation, which she hoped to support but her point was that if it took a Council change to make his suggestions doable, then that meant it was a Council change of policy and she wanted a discussion on that. Chair Park agreed, they would also need input from Metro Policy Advisory Committee (MPAC).

Andy Cotugno, Planning Director, said he was going to echo what the Chair said. Ms. Weber was describing a complete recommendation from the Executive Officer, part of that was support documentation that was in effect the analysis and part of it was policy choices, both having to do with expansion and Code changes. It was a complete package but the whole package was in the Council's court. It was up to the Council to decide which changes they wanted to adopt obviously subject to an MPAC recommendation, legal sufficiency, and adequate findings from the analysis. Councilor McLain said the two she wanted in there was the schools group and the housekeeping amendment changes.

Ms. Weber said there were technical amendments to Urban Growth Boundary (UGB), something on the sheet called “odds and ends”, there were a number of technical fixes which they believed were different than the others because they were a little larger in size and the fix would bring in farmland. It was where they had bisected a parcel and one half was inside the UGB and the other was EFU land. They needed to work those through in terms of what they could do and not do. It would be part of the deliberations. She talked about the annexation issue and noted a person who was inside the UGB but outside the jurisdictional boundary. He would like to come in. She and legal staff would be working these issues out; they should have a solution for the Council, which would make it easier for them.

Councilor Monroe said he would like the same materials they were going to provide to Councilor Burkholder. If he needed anything further he could always borrow Councilor McLain's copy. Chair Park said he was still up in the air as to what he wanted. Ms. Weber summarized that she would put together several full sets that will be available as resource or individual councilor copies. Councilor Atherton asked about the 40,000 acres in the alternatives analysis. Chair Park said he was unsure if it was EFU or non-EFU land. He said that generally EFU was easier to serve on all of those. He suggested that Councilor Atherton talk with staff about his specific questions.

Ms. Weber said she would do a concise version and also have several full copies available as reference material. She talked about how they were preparing staff to start answering the public's questions. Most of these documents would go on the web site. Currently there was an interactive map where someone could find out if they were in a study area or not. They would have the same model but it would be for arguing the Executive Officer's recommendation. The citizens would be able to go and see if they were in the recommendation or not. That map would be up and running on August 1st. They had been talking to John Donovan, Council Communications Officer, about providing good access to the public both in the interim before and after the public hearings. They had come up with some good techniques. They did a series of fact sheets for the open houses. They talked about doing one for citizens outlining key open houses, who to send things to, to e-mail, or to phone. For our own staff there would be a pre-briefing that would allow them to pick up phone and give information as of August 1st. They would make sure Council staff were also ready to answer questions. The planning staff would be available for all technical questions for the committee and the public.

Councilor McLain said she hoped staff would encourage Executive Officer to meet with all Councilors prior to the August 1^st presentation to make sure there were no red flags. She wanted this to be smooth and a team effort. Councilor Park encouraged Councilors who were interested to talk with Mr. Burton. His conversation with him had been to do with center strategy, to try and identify which pieces of land empowered a current or new center.

5.  Process after August 1, 2002 (Roles/Communication). Ms. Weber said she thought Mr. Donovan's goal was to have the locations set so they could release them on August 1^st. They had talked about how to make the hearings process more accessible to the citizens to make their opinions known, including one-on-one. They found in going to the open houses that there were a lot of elderly people who had difficulty with large crowds. They wanted to make access as easy as possible. Chair Park said by August 1^st they would have the places for the public hearings nailed down. Ms. Weber said the process where the letters had come into the local jurisdictions had worked very well. Ms. Barker and Mr. O'Brien were making sure Council and Planning had copies and a response was sent. After August 2^nd, the responses will come from Council rather than the Executive’s office. Council will be getting requests to meet with citizens. They needed to ensure that information was recorded and put into the record for consideration of the decision. She said it was important that when a property owner talked to someone they captured those calls, emails, etc.

Chair Park said Jeff Stone, Legislative Policy Officer, would be helping interface outside and inside the building. Ms. Weber said they had the notification dates on calendar that Ms. Barker had set up. She said one of the discussion points was that when you give notice to the property owner, do you just give notice to those in areas that were being recommended by the Executive Officer or do you notice you hearings for all of the areas in the alternatives analysis. She thought it was about 15,000 households. This was something Council would need to decide by early in August. Chair Park noted a discussion about 26-29 implementation. They needed to discuss early implementation to assure people that they actually were going to do what they said they would do. The universe of notification could be much larger than that and it depended upon how it was interpreted whether it was a two or three mile swath.

Mr. Cotugno revisited the issue about the massive numbers of contacts Council gets. Were there standard rules set up when a property owner contacted staff? Were citizens told to visit their Councilor or the Chair. What sort of communication should Planning staff be having when asked that question. Chair Park said if it was a letter, everyone got a copy. In terms of individual contact, it was up to individual councilors as to what they would like to do. The Councilors needed to use their own judgement. Councilor McLain said her personal philosophy was to talk to them and meet with them. If it were an issue on the record, they would make sure they announced they had met with the constituents on issues they were going to vote on. She said however Mr. Dan Cooper, General Counsel, told them to handle it, they should follow that rule. She thought it was a good idea for Mr. Cooper to put out a legal comment to both staff and Council that indicated and reminded them what was ex-parte contact. The comments that they had gotten were that they appreciated the fact that Council was willing to talk to them. She thought that was proactive and showed that they cared about what the citizen was saying. She reminded council that they had to be direct, they were one councilor with one vote. They had a process, a legal standard and meetings where they would make their public choices. Chair Park asked, on a legislative decision this was not ex-parte and quasi-judicial, they were not under the same rules? Mr. Benner responded it was not a major or minor amendment adjustment, it was legislative. Council could confine itself or talk to anyone they choose. You don’t have to disclose the conversation right up until the time decisions were made in December. Councilor McLain said the reason she asked for that was because they dealt with different jurisdictions that had, in fact, limited themselves. They needed clarification. She suggested a memo from the Legal Department, which said outlined the rules for legislative decisions. Chair Park suggested that this might be what Ms. Weber was working on. Ms. Weber said 'how do you make a difference in the process' fact sheet ought to be able to say, call your councilor. She said, as staff, if there were councilors who were uncomfortable with that, they should let the department know so they don't make the situation worse. Chair Park said, as Chair, he had been discouraging those phone calls. If they wanted to talk policy, fine, but as he understood, after the recommendation, you did have to shift gears to the other mode and take those calls on the basis of what properties. Councilor McLain gave an example of the last time they put land into the UGB around King City. There was quite a bit of the vote that dealt with transportation issues. She had found that anytime they had allowed people to tell them more about their land, circumstances and concerns, the Council had a better opportunity for putting conditions on property being brought into the UGB. She hoped that all Councilors would be open to information that helped them with good UGB decisions. Last time they found out information that helped them with conditions. It was Council's responsibility to make sure that the parcel was possible to comprehensively plan well. Chair Park said he thought it was appropriate to have that kind of contact after August 1st.

6.  Periodic Review/Outstanding Issues. Mr. Cotugno gave an overview of outstanding issues. He went over some of the thoughts they had about the kinds of issues that would need to be addressed later. Did we treat this as the end of periodic review or as a request to LCDC to amend their periodic review work order? If so, that needed to be a formal request. He talked about the past approved work order and the process they went through which included changes because of public comment. If they were going to ask for Task 3 they needed to be specific about what they were going to ask for. He suggested Mr. Benner give guidance on the latitude for which they could ask for a periodic review work program amendment. Mr. Benner responded that the Commission had the authority to revise a periodic review work program. It can do that to amend a task or add a task. It had discretion to do that; it has criteria, which it applied when it was considering doing that. When there was a change to a work program, for example, a task was added, generally speaking the nature and timing of the tasks were a matter of discussion between the agency and the local government. There weren't specific parameters in statute about how long the agency could give Metro to complete a task but periodic review was supposed to be completed within 3 years. There was a lot of flexibility for Metro and state agency to change a periodic review work program. If it affected the UGB, Metro was also bound by another statute ORS 197-299, concerning the change of the UGB. Metro must keep that in mind when considering changes to the periodic review work program. According to the statute, every five years Metro took a look at the capacity of the boundary and after the analysis was completed, if this included an expansion of the boundary, Metro must do that in two years. He said it was clear Metro would be expanding the UGB from Task 2. Metro would be completing their analysis before the end of December. So Metro had as much as two years to take in 100 percent of the amount of UGB expansion needed. That was what ORS 197-299 allowed them. But the periodic review work program said Metro would be completing that task in December 2002. Those two things had to work together. Under the periodic review statute you can get an extension of time for a work task but there can only be one and it can't be for more than a year. Even though the periodic review said completed in December, you could get an extension for one year.

Mr. Benner said a new task could be added to periodic review and again it was between Metro and the agency about the timeline for the new task. Chair Park asked if it had the same one-year limit? Mr. Benner said if Metro thought it was going to take two years, the agency could review the program to allow that time. The agency would have to be mindful of the statute which said try to complete periodic review within three years. This would have to be clarified as to whether you were talking about another task in periodic review or the next periodic review. Chair Park said as he understood the process, they would have to make a request of the Commission and such a request of change of work plan was also an appealable issue? Mr. Benner said yes, there would be action by the agency and all of those actions were appealable to the Court of Appeals. Mr. Cotugno said they needed to get to a conclusion at the same time the Council was making decisions about what got finished, they were simultaneously they were making decisions about what was being requested for part of an extension or part of additional task. The sub-regional discussion had been around for a year. The communications that they had been making consistently was that, as soon as they had a clean rule, they would apply the rule. Council could choose to apply that inside or outside periodic review. That was a conscience decision that needed to be made and what was the deadline.

Councilor McLain said the whole reason for that was that the need assessment was still current. After two years they didn't consider the need assessment to be current. If you were going to proceed, you could still use the Urban Growth Report (UGR). Was there anything else other than that element that would cause us not to have at least 2 years? Mr. Benner responded, when you talk about using the UGR, you were talking about both the data and the assumptions that you reached as a result of looking at the data such as the capture rate and the refill rate. You could continue to use assumptions in UGR but would probably be looking at 2 extra years worth of need that you would want to be accommodating when you made that decision two years out assuming you decided in December of 2002 to accommodate a 20-year supply of buildable land for housing going out to 2022. If you made a new decision in 2004, you wanted to apply sub-regional analysis; you would be going out to 2024, adding two additional years of need. That would be a change to the UGR. Councilor McLain responded to that timing was everything and so legally speaking you can use the UGR. You might want to have an update but you didn't have to. They could use the UGR for two years. The reason we would want to use the additional information would be to accommodate that 20 year land supply and make sure that they had findings that could be supported. If the UGR was outdated where they needed to add an update to make it a real document of supportable quality, she understood that. They had also talked about the fact that sometimes to get the most out of refill or redevelopment or to let the capture rate flow with the circumstances, you had to let it percolate a bit. She wanted to make sure that legally they could have up to two years to use the UGR. We had an update to the UGR in 1998. Mr. Benner said yes.

Chair Park asked, in terms of alternatives analysis, how long before that went stale? Mr. Benner said it was probably pretty long lasting because the thing that you would expect to change over time, would be the land use pattern. There isn't all that much change in the land use pattern on rural lands. Chair Park asked what was the definition of a long time? Mr. Benner responded five years as long as the facts were valid. Mr. Cotugno said the whole sub-regional question; did they put it in periodic review or outside periodic review and in what timeframe as part of a partial decision or a complete decision and therefore one or two more years of need? All of that needed to be concluded as part of this fall’s activity so that they knew if they were doing a periodic review and, then, what it was they were asking for. That itself could become an appealable decision. The second area had to do with all of the UGB amendments that may need to be further considered relating to jobs. He noted the presentation on the jobs/lands needs analysis. There were a lot of intricacies on how commercial uses were changed to make it industrial land, how commercial displaced existing industrial areas and the question of trade-offs between using exceptions land locations versus farm land locations. There were a lot of undone issues related to jobs. There will be recommendations from the Executive Officer about providing for job needs that may or may not address these complicated issues. He was skeptical. Is there something there that we wanted to make part of the second component of periodic review? He would suggest that if they thought there were some outstanding UGB decisions then that probably ought to be in periodic review. If they didn't think it was going to be UGB related questions, but title 4 protections or relationship between refill and centers versus industrial lands then maybe they didn't want it in periodic review. That was another judgement call that needed to be made.

Chair Park asked about the 5700 acres that showed up in the industrial report; did that assume protection or no protection. Mr. Cotugno said that assumed the market would continue to convert existing commercial areas and redevelop those from industrial to commercial and it assumed that there would be no further protection of vacant industrial land and that would get used for commercial as well. Chair Park said they could cut that need in about half if they did protections on the other. Mr. Cotugno responded yes but it would increase the need on the commercial side. Chair Park said those might go into centers. He asked if Mr. Cotugno was anticipating some shortage of job/land. Mr. Cotugno did not respond. He said the third question, was did they want to take up urban reserves again? He thought that several years ago if they had asked that question, the answer would be no. But maybe the issue was more appropriate to reconsider now and explained why.

Councilor Bragdon asked about question 2, if the implication was that the Executive Officer was not going to address the real need that was established for industrial land that they had seen in the report, they needed to get on to it pretty quickly. That was a very real need that we should be addressing. Chair Park said it went back to what Ms. Weber was saying earlier, what were they willing to do in the Regional Framework Plan as well as how fast and how much can they get through MPAC to effect this periodic review. They would need to have a discussion about this. He was unsure about what they were going to be proposing in terms of new Framework Plan or Functional Plan pieces.

Mr. Cotugno said the 4^th area was the issue of Goal 5. There had been a common expectation on Council's part that if Goal 5 program results in reduction of available land supply, there will be replacements to compensate capacity. You have the option of doing Goal 5 inside or outside periodic review. You have the option of adopting the UGB amendment to compensate when you do the Goal 5 program or in the next five-year cycle. Council had choices there. It was his sense that if we were going to link together the UGB amendments with Goal 5 it made sense to be in periodic review for the same reason that they were in periodic review now for the UGB. They wanted the Commission with Metro, not to appeal Metro's decisions. If there was a UGB connection, there was a good argument for having Goal 5 be in periodic review so that that UGB connection was also in periodic review. They did have the option of doing it outside periodic review and they had the option of doing it in the next periodic review rather than upon adoption of the Goal 5 program. This was another piece that merited discussion. Councilor Bragdon said there was probably a lag time of up to 18 months in adoption of a Goal 5 program and actual implementation of it in local codes in terms of the capacity. In terms of reduction in existing inventory and additional inventory, that may not be a one to one correspondence. It was really capacity, not acre for acre.

Councilor Burkholder asked about the relative numbers for housing. Councilor McLain pointed out that they got through Title 3 without being in periodic review successfully. This time the State had not been part of challenge formula. It had to do with other elements of their partners making sure that they were all on the same page so they were not being redundant or not respectful of their own personal independent jurisdictional work. She would hate to see us lose more opportunities for protection by adding another step in the process. Most everything they did had to be acknowledged which added months to the process. She wanted to hear more about legal perspectives, what we would be tying to the UGB process versus not tying to the UGB process. Chair Park suggested that Mr. Benner outline the two paths.

Mr. Benner outlined the two paths in or outside periodic review for the Goal 5 process. There was an unusual wrinkle in terms of the Goal 5 program by Metro. Ordinarily they would have the choice to go through this in periodic review or outside periodic review. The Goal 5 rule that authorized Metro to do a Goal 5 program for regionally significant resources said Metro must submit it to LCDC for acknowledgement. If you were not in periodic review you would take an action and an appeal would go to LUBA. In this instance if you do it outside of periodic review, it still went to LCDC. They had to anticipate that someone was going to disagree with Goal 5 programs. If you were in periodic review, the person who disagreed with the program followed you to LCDC, participated in LCDC's process. If they disagreed with LCDC then they went to the Court of Appeals. Ordinarily if you were outside periodic review and a person disagreed with you, he would appeal it to LUBA. This would be different. If Metro chooses to do it outside of periodic review it would still go to LCDC. If you are the person who disagrees with the Goal 5 program, that person can chose to appeal to LUBA and participate at LCDC. The reason was the requirement that Metro submit this to LCDC was not statute, it was in an LCDC rule. It was not clear whether a person who disagreed could appeal to LUBA or participate with LCDC. It was not clear so that person was likely to do both. To avoid that situation, knowing that you were going to submit it to LCDC anyway, there was some logic in doing it in periodic review to avoid any exposure to an appeal to LUBA.

Councilor McLain responded that anytime you take anything to LCDC or LUBA you were dealing with implications that were statewide. Metro was an urban area with very urban landscape. Her fix would be to deal with it at the State legislature to make sure people knew what the rule really said. She didn't find it to be always helpful when they were thinking about statewide implications to statewide law. Mr. Cotugno asked Mr. Benner if there was particular timing that they should focus on. Mr. Benner said your decision about when to do it ought to be informed by the agency perspective about when it would be right. It was certainly the case that Metro would have to ask for a change to the program before this periodic review ended. It didn't end until LCDC acknowledged what you did in Task 2. There was not an immediate need to get it into the agency. You should probably get the request into the agency in early fall to allow back and forth. Councilor McLain said we have only so much we can protect inside the UGB that relates to Goal 5 issues and they were flying away everyday. If the staff was coming up with this being the preferred path, it better not be September through December that they had this conversation. They should start working with department about what that meant. She didn't want it holding up the rest of the UGB work or Goal 5 work in March through December 2003. She suggested getting this back on the agenda before recess in August.

Chair Park said if we do this request as suggested in September, based upon sub-regional rule that hadn't been written yet, they would have to spin it correctly. They might get the rule in late October. Then it depended upon appeals what they were actually able to do. He said he was under the understanding that periodic review ended at the end of this year. What Mr. Benner had indicated was that it ended at the time of LCDC acknowledgement. He felt that gave them more latitude about making the decision and what path they wanted to take so it didn't have to be an immediate jump. Councilor McLain suggested we think of as many options as possible. She was asking for wide range of opportunities for suggested paths.

Chair Park said they had more time to talk about this then he had thought originally. Councilor McLain said she was willing to share this item on her agenda too. Councilor Burkholder was in support of Councilor McLain's suggestion, we needed different options and the more that could be put off to the future, the better. Councilor Burkholder asked about 26-29 implementation. He noted some Framework Plan draft language available. How do we implement that and what was the timing? Chair Park said they would wait until Mr. Cooper returned to find out what the notification universe was and to have the debate about public process and notification. He noted that in the alternatives analysis there was 15,000 households.

7.  COUNCILOR COMMUNICATIONS. Michael Morrissey, Council Analyst, said Ms. Georgia Simone Green was the latest member of the Portland regional center born today at noon.

There being no further business before the committee, the meeting adjourned at 3:25 p.m.

Respectfully submitted,

Claudia Wilton (as transcribed by Christina Billington, Council Clerk)

Council Assistant

ATTACHMENTS TO THE PUBLIC RECORD FOR THE MEETING OF JULY 16, 2002

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