MINUTES OF THE METRO COUNCIL

COMMUNITY PLANNING COMMITTEE WORK SESSION MEETING

Tuesday, November 12, 2002

Metro Council Chamber

Members Present:  Rod Park (Chair), Rex Burkholder, Carl Hosticka, and Susan McLain.

Members Absent:  Councilors David Bragdon and Rod Monroe were excused. Councilor Atherton was not in attendance.

1.  CALL TO ORDER AND ROLL CALL. Chair Park called the meeting to order at 2:11 p.m.

2.  CONSIDERATION OF THE MINUTES OF THE NOVEMBER 5, 2002, COMMUNITY PLANNING COMMITTEE MEETING. The minutes were not completed in time to be considered by the committee. Approval of the minutes was postponed.

3.  ORDINANCE NO. 02-981 – For the Purpose of Amending Ordinance No. 95-625A to Amend the 2040 Growth Concept Map and Ordinance No. 96-647C to Amend the Employment and Industrial Areas Map – November 2002; and Declaring an Emergency. Brenda Bernards, Senior Regional Planner, reviewed the ordinance and staff report. She reviewed each of the maps in Attachment 1 to Ordinance No. 02-981 – List of Maps (a copy of which is included as part of this record). She said these map changes did not affect any of the Title 1 numbers. At Councilor McLain’s request, Ms. Bernards reviewed the criteria for the technical amendments. These amendments were deemed technical because Metro was adjusting its maps to match local jurisdictions’ maps. The local maps were based on each jurisdiction’s work to come into compliance with Metro’s Functional Plan.

Councilor McLain asked how the City of Cornelius’s request to change the Employment Area designation west of N. 19th Avenue, north of the railway tracks to N. Holladay Street, to an Outer Neighborhood designation helped the city to comply with the Functional Plan (Ordinance No. 02-981, page 2, paragraph 2(A)(iv)).

Ms. Bernards said both areas ‘c’ and ‘d’ on Maps 1 and 2 had always been zoned for residential. However, Metro inaccurately listed it on the employment and industrial areas map. Therefore, Cornelius asked Metro for a map correction. For the most part, all the technical amendments in Ordinance No. 02-981 were map corrections, not changes.

Councilor Burkholder asked about the Fairview map and asked if the area on the ground as employment predated the Title 4 restrictions on non-industrial development within an industrial area (Map 3 area ‘a’). Ms. Bernards said yes, she believed Fairview’s zoning existed before Metro’s zoning.

John Anderson, Community Development Director, City of Fairview, said the idea was to actually reflect what was on the property. The area identified as ‘b’ was actually Fairview’s largest industrial employer, but was designated as Employment. Fairview would like the designation changed to Industrial. The other area was affected by the commercial corridor running through it, he said, and Fairview would like to see that area reflected as Employment. Councilor Burkholder asked if Fairview’s long-term goal was to change the whole southern bank of the Industrial-zoned area to Employment. Mr. Anderson said no, Fairview had a master plan for the area that would prohibit that from happening.

Chair Park announced to the audience that the committee would not be discussing particular sites for potential urban growth boundary (UGB) expansion, that they were still concentrating on technical amendments. Consideration of particular sites would begin on November 19, 2002, he said.

Ms. Bernards said area ‘a’ on Map 7 (Gresham) was known as the brickyards. The site was shown as Industrial on Metro’s maps. Gresham asked that the designation be changed to Employment because it saw the future of the site as a business park. Chair Park asked Gresham to explain its request, given that the area to the south of the brickyards was proposed for inclusion in the UGB as an industrial site. Why would Metro want to covert area ‘a’ from an industrial site to a business park designation, he asked.

Richard Ross, Community Planning Division Manager, City of Gresham, said when the City of Gresham made this request in March, they had not yet considered the whole Springwater Proposal. Gresham would like to suggest that the area be looked at in conjunction with the Springwater Proposal. The current designation of Heavy Industrial was not ideal. One of the downsides of the current zoning was that it allowed for a mixed bag of uses. For example, he said, Gresham recently received an application for a mini-storage facility in the area. That was not the best long-term use of the land. Gresham was also concerned about keeping the brickyards going. Given the opportunities with the Springwater Proposal to create a larger employment area, Gresham would prefer to wrap the map change into the Springwater concept planning and not necessarily proceed with the technical map amendment at this time.

Chair Park agreed that it made sense to wait on the amendment, in order to allow time to look at the total concept plan for the area. He noted that there were two schools located immediately east of the brickyards. He asked if Inner Neighborhood was the default designation for schools. Ms. Bernards said it was. The designations were meant to be broad, therefore there was no Schools category. Mr. Ross added that the schools existed there before Gresham imposed its Industrial code changes. Therefore they were an allowed use under the grandfather clause.

Councilor Burkholder asked if a motion was in order to strike the language in the ordinance pertaining to the brickyards (page 2: paragraph 2(D)[i]). Ms. Bernards said no, she would return to the committee with an ‘A’ version of the ordinance.

Councilor McLain asked the total amount of changes, in terms of acreage. Ms. Bernards said she did not know, but that she would ask Carol Hall, Principal GIS Specialist, to provide Councilor McLain with that information. Councilor McLain thanked Ms. Bernards for her work. She noted that these were all technical map corrections, and asked if jurisdictions would also be submitting map changes. If so, she asked if the Metro Policy Advisory Committee (MPAC) would review the changes.

Ms. Bernards said no, that staff had not received any requests for map changes She noted that MPAC was required to review the technical map corrections; Ordinance No. 02-981 would be on MPAC’s agenda November 13, 2002. Ms. Bernards noted that the rural reserves had been removed from the map, and said they should have been removed from the map when the urban reserves were removed.

Councilor Burkholder said the staff report mentioned changing the Outer Neighborhood designation in the Pleasant Valley area to Inner Neighborhood. He asked where the change was shown. Ms. Bernards said it was not shown on the map; she would get him a corrected map. In answer to a question from Chair Park, she said she thought Inner Neighborhood designation was 14 persons per acre, whereas Outer Neighborhood was 13 persons per acre. Outer Neighborhood designation was usually on the edges where the lots were larger. She would confirm the numbers.

Councilor McLain said Metro had a 2040 Growth Concept map, which was acknowledged by the state. The state did not deal with urban reserves; it was dealing with the fact that Metro had a 2040 Concept Map that had Centers, Regional Centers, and Corridors. Rural reserves were included on that map, because they were part of the discussion throughout the crafting of the 2040 Growth Concept. It had nothing to do with urban reserves. Ms. Bernards had said that when urban reserves were removed from the map, rural reserves should have also been removed. In her opinion this was not a technical amendment, it was a matter of policy, and said she would have to vote against the ordinance as it was. The narration was too simple, she added, and she asked the committee to remove the language pertaining to rural reserves in order to move forward the technical amendments. She asked legal counsel to comment on Ms. Bernards’ statement.

Dick Benner, Senior Assistant Counsel, said he understood Councilor McLain’s question to be that, because the Land Conservation and Development Commission (LCDC) acknowledged the 2040 Growth Concept map, was Metro free to remove that designation. The answer was yes, Metro could do so because when LCDC acknowledged the 2040 Growth Concept, it was acknowledging it for compliance with the statewide planning goals. There was nothing in the statewide planning goals that required Metro to designate rural reserves; that was Metro’s own policy, he said. If the Council decided to remove rural reserves from the 2040 Growth Concept map, it would need to notify the Department of Land Conservation and Development (DLCD).

Councilor McLain said the Metro Council discussed rural reserves and the 2040 Growth Concept map for four to five years. If the committee was to remove the rural reserves designation today, she would want to revisit the Regional Urban Growth Goals and Objectives, the Regional Framework Plan, and the Urban Growth Management Functional Plan to ensure that the committee had not affected any of those documents.

Chair Park said he understood that the rural reserves were connected with the creation of the urban reserves, and when the urban reserves were overturned in court and were no longer in effect, then the rural reserves were no longer in effect. He said he thought that the urban reserves should have been taken off and it would take some type of affirmative action, such as a new type of ordinance on the Metro Council’s part, to reinstate the urban reserves. Councilor McLain said she wanted to be careful not to harm Metro’s basic guiding documents. She didn’t want to debate the issue, but she wanted to remove the urban reserves so a thorough conversation could occur. She said Metro had the right to take rural reserves off their map, but the reserves issue had helped to create Metro’s guiding documents as they currently stood. She said she was requesting removal of a piece that was not a technical amendment and that had policy implications.

Mr. Benner said he understood Chair Park’s question to ask that since rural and urban reserves were tied in the same Metro decision and urban reserves had been invalidated by the Land Use Board of Appeals (LUBA), whether by invalidating them, Metro could only have them by reenacting them later. Since Metro had no rural reserves, Mr. Benner said, a simple map correction was needed and not a decision by the committee to remove the rural reserves. He spoke to page 6 of the staff report and its mention of an ordinance that mentioned both urban and rural reserves, but the staff report citation was not complete. He said it was necessary to trace the decision-making by the council on urban and rural reserves to see if they were tied together in some fashion, and whether rural reserves were invalidated with urban reserves.

Chair Park said he was not debating this but he wanted to make sure the organic pieces were in place so people in the future would understand where this issue fell in the process.

Councilor Hosticka asked if the ordinance that was invalidated was something that simply amended the concept map or if was more substantive in terms of a formal designation. He asked if, in regards to the 2040 Growth Concept map on the west wall (of the council chamber), a large portion of the area that was being considered for expansion in the Damascus area was designated as rural reserve. He also asked if the areas designated as rural reserve would be designated as such until the committee undesignated them as such. Ms. Bernards assented.

Councilor McLain said that since there had been a large amount of turnover on the Metro Council, the newer members should take the opportunity to review what work had been done. She said if the designation had been left on the map for as long as it had without a problem, she didn’t think it would hurt to wait another month or two to make a decision. She said Metro had to skip urban reserves and go straight to looking at study areas, which is what it was doing. Chair Park said that when he looked at what was designated as rural reserves, it appeared to be exception lands in the Damascus area, looking east of Gresham and Boring. In the current 2040 Growth Concept map, those areas were showing as rural reserves and on the proposed new map they were showing as exception areas. Councilor McLain said she wasn’t against changing the map, but that it deserved a policy conversation.

Chair Park noted that after MPAC looked at the ordinance, it would come back to the committee in an “A” version.

Ms. Bernards said that Andy Cotugno, Planning Director would make the presentation to MPAC with amendments to the ordinance. She said staff would try to make needed changes to maps before the presentation to MPAC.

4.  ORDINANCE NO. 02-964 – For the Purpose of Amending Metro Code Sections 3.01.015, 3.01.025, 3.01.065 and 3.09.050 to Allow Expansion of the Urban Growth Boundary Onto Land Outside the District Prior to Annexation on Condition That the Territory be Annexed Prior to Urbanization; and Declaring an Emergency. Mr. Benner said the motivation for this proposal preceded the committee’s consideration of Task 2 of periodic review. When the UGB was last amended and the amendment was to include land lying outside of Metro’s boundary, Metro went through a three-step process. First, the committee adopted a resolution expressing the council’s intent to include the land in the UGB. Second, the committee annexed the territory through the district boundary. Third, the UGB was amended to include the land. At that time, he said, several councilors had expressed frustration with the lengthy and redundant process. He said the three-step process might impede efforts to gain acknowledgement of the UGB expansion. It was likely that LCDC could not acknowledge the land inclusion because Metro had not finally brought it into the boundary and compliance with Goal 14 had not been met. He said the proposed code amendments addressed that prospect.

Mr. Benner continued, saying Metro did not have regulatory authority over land that might come into the UGB but not into its district. He said the amendments would change the code to allow Metro to expand the UGB to include land that was not within the district’s boundary. The inclusion would occur with the condition that the land could not be urbanized until the local governments responsible had completed the Title 11 planning and the land had been annexed to the district. He said urbanization would be contingent upon annexation to district boundary. Most of the amendments to the existing code provisions regarded amending the UGB, but there was also an amendment to the code provision regarding how to change the district boundary.

Chair Park said there were pieces of exception land outside the Metro boundary that state law required Metro to bring into the UGB first. He said if these amendments were not made, Metro would not be able to comply with state law.

Councilor McLain spoke to page 3 of Exhibit B to Ordinance 02-964. Her understanding, she said, was that the local government would still have the responsibility to give Metro their zoning changes to complete the process. She said the amendments would allow the state to act on Metro’s work because Metro had put the sequence in the right order.

Chair Park asked if, were Metro to change the process as per the amendments and the local governments were unwilling to sign an intergovernmental agreement, Metro’s ability to challenge in court would have a favorable result. Mr. Benner responded that the situation would be such that if Metro chose to expand the UGB to include territory inside the district boundary, there would be an expectation of an agreement between Metro and the local jurisdiction. The local jurisdiction would agree to apply the interim protection standards in Title 11 until the territory annexed. Once the territory annexed, it would be subject to Metro’s jurisdiction. He said that in the unlikely circumstance that the local jurisdiction refused to apply the Title 11 interim standards and Metro continued with the UGB expansion to include the territory in question, the local jurisdiction would be subject to statewide planning goals if it were to change the zoning. He said it was very likely that Metro could ensure, through litigation, that the land would not urbanize until all of Title 11, including the annexation, had occurred.

Councilor Hosticka spoke to the language, “written agreement with the local government,” and asked what form of agreement was required. Mr. Benner responded that there would be two pieces. The first would be a formal, signed agreement between the governing bodies. When the land was added to the UGB, there would be a condition on it, which would work in tandem with the formal agreement.

Chair Park asked when the process should take place. Mr. Benner responded that it should take place before land was added into the UGB.

Councilor Burkholder posited a scenario in which the Metro Council made a UGB expansion and the jurisdiction where the expansion took place did not want to develop the land and did not sign a memorandum of understanding. He asked what would happen when Metro went to LCDC and asked for an acknowledgement of that action. He asked if the property would not be considered as part of Metro’s accommodation for growth and whether Metro could continue with annexing that land. Mr. Benner said that the annexation process could continue. He said the land would still be considered to be inside the UGB and would be part of Metro’s accommodation for growth.

5.  UGB TECHNICAL AMENDMENTS. Ms. Bernards distributed Appendix Item #7 to Ordinance No. 02-969, Technical Amendments to the Urban Growth Boundary with attached maps (and made a part of this record). She spoke to the areas where the local jurisdiction boundary extended beyond the UGB. Chair Park noted that the vast majority of the areas were on the west side of the region. Ms. Bernards said there were areas that weren’t included in which the local jurisdictional boundary extended beyond Metro’s jurisdictional boundary, requiring more than a technical amendment. She said those areas would be addressed as part of Task 3.

Ms. Bernards then spoke to map 1 (area 1) and map 2 (area 2) in Forest Grove where the UGB followed the floodplain and the city boundary followed the lot lines. She spoke to map 3 (areas 3, 4 and 5) in Cornelius, which showed the largest of the technical amendments at about 11 acres. She said these areas were all either unplatted or developed. She spoke to map 4 (area 6) in Troutdale. This was in the Columbia Scenic Gorge area, she said, so the UGB didn’t mean anything because they couldn’t urbanize anyway, but the amendment would clean up the map. The proposal was to match up to the city boundary and tax lots. She spoke to map 5 (area 7) in Cornelius. These areas were in the study areas so might come in during the expansion, but it was another case of following the floodplain instead of the city limits.

Chair Park went back to map 4 (area 6) in Troutdale and asked why the lot lines seemed to go into the Sandy River. Ms. Bernards said that other areas extended into the Willamette and Columbia rivers and she thought they had riparian rights. Mr. Benner spoke to the state navigability studies on the Sandy River and was unsure whether there was a determination that it was navigable. In the absence of a navigability determination, typically the upland property owners on either side owned to the middle of the river, and the map might be an artifact of that practice.

Ms. Bernards spoke to map 6 (areas 8, 9 and 10), which proposed to match areas to the city boundaries. Metro owned one of the parcels in area 10. She spoke to map 7 (area 11) and map 8 (area 12) in Tualatin. She said a number of the areas in the technical amendments were road right-of-ways where the UGB cut off a little piece of the city. She said this also applied to map 9 (area 13) in West Linn. She spoke to map 10 (area 14) in West Linn, saying the area was a little island just off of West Linn. The island was owned by West Linn and was a city park

She spoke to map 11 (area 15) in Oregon City in which a piece of a tax lot, zoned for single-family, had been cut off. She spoke to map 12 (area 16) in Happy Valley, which was another road right-of-way example. She spoke to map 13 (area 17) and map 14 (area 18) in Gresham where were also road right-of-way examples. She spoke to map 15 (area 19) in Gresham, which were three properties inside the city boundary and zoned as single-family lots. She spoke to map 16 (area 20) in Tualatin which required a roadway realignment. Last, Ms. Bernards spoke to map 17 (area 21), which was non-resource land where the UGB cut through one tax lot. She said there were other cases of this in the region and that staff was working to identify those. Chair Park advised the committee to keep the maps as they were expensive to reproduce.

Councilor McLain thanked Ms. Bernards for all her hard work. She said this was the tip of the iceberg and there would be other technical corrections to be made, some of which would be more difficult. Councilor Burkholder agreed that there were some issues for the next year’s discussion. He said that in the UGB public hearings, residents of Beavercreek people had said they couldn’t vote on Metro issues yet Metro made decisions that affected their lives. He said it was a big issue that was ripe for discussion in the next year. Chair Park thanked Ms. Bernards and said the committee would keep its maps.

5a.  UGB PUBLIC NOTICE. John Donovan, Council Communications Officer, spoke to a UGB notice that had run in that day’s The Oregonian (a photocopy of which is included as a part of this record). He said that upon the advice of Mr. Benner, this ad had been placed in order to for Metro to meet its notice requirements. The map was intended to show areas studied by staff and included in the process up to November 5, 2002, which were designated as resource land. By notifying the public through the ad, Metro was assuring them that there was awareness that the areas were resource lands and that Metro would have to take exception to Goal 3 or Goal 4 in order to bring those areas into the UGB Had the map worked as intended, it would have been clearer, Mr. Donovan said. However, as published it was unreadable, and he chose not to comment on whether or not the ad was acceptable notice. He asked the committee’s permission to fix the ad and republish, saying that Metro would still meet its notification guidelines.

Mr. Donovan said the Oregonian was not responsible for this error. He said the map had been submitted on time, but had been corrupted during the email conversion process. He said the cost to rerun the ad was roughly $2,200.00. Councilor Burkholder supported republishing the ad. Mr. Donovan said The Oregonian was not responsible. Councilor McLain agreed and suggested that if the map could be changed, that it include larger print and contact information for citizens who might have questions.

Mr. Donovan said that in the future Metro would request proofs from The Oregonian after ads had been submitted. Chair Park said the committee concurred to rerun the ad.

5b.  URBAN GROWTH REPORT. Chair Park referred to a distributed copy of an updated version of Table 1 from the UGR, for their use (a copy of which is included as part of this record).

5c.  VACANCY RATE ASSUMPTION/METROSCOPE. Chair Park spoke to a previous question regarding the vacancy rate assumption made from MetroScope. He said MetroScope had been run with a 5% vacancy rate. However, there was no data as to what potential effects vacancy rate had on capture rate, refill, or other output.

Councilor McLain said it was important for the committee to remember that MetroScope was a model and came from assumptions that were made up. She said she was interested in how MetroScope was used in findings. Chair Park said the question was whether the vacancy rate was in or not in MetroScope.

Councilor Hosticka said that whenever the question was asked as to what the significance of MetroScope was in terms of decisions, the committee had been told that MetroScope was not to be used for those purposes, and that the committee should look at history and policy. Chair Park said the committee would need to be better informed on the assumptions that were going into MetroScope when moving into the next phase, which was Task 3. Current MetroScope runs were carried out with the infrastructure as it was available every five years. He said it was known there would be a differential rate of infrastructure provision, and he didn’t know whether MetroScope could address that. Councilor McLain said she understood that MetroScope was not going to give an answer, because there was a number of assumptions and a number of models. If Metro was going to utilize MetroScope in any form, it would need to be determined what additional information was necessary.

6.  COUNCILOR COMMUNICATIONS. Chair Park said that since the day’s agenda had been covered, he would cancel the November 14, 2002, Community Planning Committee meeting. Mr. Benner said he was preparing an updated Ordinance 02-969 to be sure proper reference was made to the new exhibits that were being added. Chair Park asked him to distribute the document when completed. He said he had asked Mr. Benner to realign the exhibits.

Councilor Hosticka asked Chair Park to speak to the upcoming committee schedule. Chair Park responded that on Tuesday, November 19th, the committee would convene at 1 p.m. and go as long as they could. On Wednesday, November 20th, they would again start at 1 p.m., and again go as long as they could. He said he was hoping they and staff could get the work completed by the time Ordinance 02-969 was first read at council on November 21,2002. Chair Park said he was tentatively scheduling another meeting for Tuesday, November 26th.

There being no further business before the committee, the meeting adjourned at 3:47 p.m.

Respectfully submitted,

Rooney Barker

Committee Clerk

ATTACHMENTS TO THE PUBLIC RECORD FOR THE MEETING OF NOVEMBER 12, 2002

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

TESTIMONY CARDS. None.