METRO COUNCIL GROWTH MANAGEMENT COMMITTEE

Tuesday, July 7, 1998

Council Chamber

Members Present:  Jon Kvistad (Chair), Don Morissette, Rod Monroe  

Members Absent:    None

Also Present:    Susan McLain

Chair Kvistad called the meeting to order at 1:35 P.M.

1.  CONSIDERATION OF THE JUNE 16, 1998, GROWTH MANAGEMENT COMMITTEE MEETING MINUTES

The minutes stand as read.

2.  ORDINANCE NO. 98-727, FOR THE PURPOSE OF AMENDING ORDINANCES NO. 96-647C AND NO. 97-715B, THE URBAN GROWTH MANAGEMENT FUNCTIONAL PLAN, TO CLARIFY COMPLIANCE ISSUES

Councilor McLain proposed a technical amendment to Ordinance No. 98-727B to fix a typographical error. The last sentence of Section 3(A) should read as follows:

Accordingly, a city or county comprehensive plan or land use regulation meets this consistency requirement if it retains the ability of the city or county to substantially comply with housing and employment targets, and other requirements, and by designating 2040 design type boundaries which substantially comply with the 2040 Growth Concept Map.

Councilor Morissette asked Mr. Cooper if the amendment constituted a substantive change. Mr. Cooper said it did not.

Councilor McLain reviewed the ordinance. She said an A version of the ordinance exempted small cities, but it was not supported by the Metro Policy Advisory Committee (MPAC), and Ordinance No. 98-727B omits the portion regarding small cities.

Dan Cooper, General Counsel, said Ordinance No. 98-727B would define the term “substantial compliance” in the Urban Growth Management Functional Plan (Functional Plan). He said the term gives local jurisdictions some flexibility, and avoids judging jurisdictions by an absolute standard when the goal of the Functional Plan was to develop a range. Mr. Cooper said the ordinance would also clarify that comprehensive plan amendments which do not interfere with a city or county’s ability to comply with the Functional Plan are consistent with the Functional Plan as long as after the land use regulation is amended, the city or county can still meet housing and employment targets and all other requirements, and can still designate 2040 design type boundaries which substantially comply with the 2040 Growth Concept Map.

Councilor McLain said she supports Ordinance No. 98-727B for two reasons: first, it gives the Functional Plan more clarity and second, it gives local jurisdictions more flexibility while maintaining the original goal.

Councilor Morissette said he supports more flexibility in the Functional Plan, as he believes the Functional Plan and the 2040 Growth Concept require growth in the wrong areas.

Chair Kvistad said he also supports the ordinance.

Councilor McLain will carry Ordinance No. 98-727B to the full Metro Council.

3.  WORK SESSION TO REVIEW METRO CODE REQUIREMENTS FOR MOVING THE URBAN GROWTH BOUNDARY

Chair Kvistad directed the committee’s attention to two handouts: a letter from Mike Burton, Executive Officer, with attachments, and a draft of proposed amendments to Metro Code dated July 7, 1998. A copy of both handouts is included in the meeting record. He said the materials will be given to MPAC for review at its next meeting on July 8, 1998.

Elaine Wilkerson, Director of Growth Management Services, said she and staff identified three obstacles in the Metro Code that will impede the Council’s ability to add half the established need to the urban growth boundary (UGB) by the end of the year. The three obstacles and potential solutions are discussed in the letter from Executive Officer Burton to Chair Kvistad, which Ms. Wilkerson reviewed.

Councilor Morissette asked about property owners’ rights to develop property that has been brought into the UGB but is not yet usable based on comprehensive plans. Ms. Wilkerson said the existing zoning in the area would apply to the property. She said the proposal would limit up-zoning to urban densities until planning is done, but would not limit any current property owner rights.

Councilor McLain said members of MPAC have expressed two concerns about rewriting the Metro Code: 1) if Metro provides exceptions when governance agreements cannot be made, how will that affect service provision or the ability to pay for infrastructure, and 2) the timing of the urban reserve planning requirements.

Mr. Cooper said he prepared a draft of proposed amendments to the Metro Code for committee review, rather than a draft ordinance, because there are parallel provisions in the text of the Framework Plan which would need conforming amendments. He said the draft of proposed amendments to the Code is meant to be a starting point for discussion, and shows one possible way to address each of the issues listed in Executive Officer Burton’s letter. He said the committee can choose to forward the proposed amendments to MPAC for review while the ordinance is being drafted and first read in Council, or the committee can wait until the ordinance is prepared and first read, and then send it to MPAC. Mr. Cooper added that the proposed amendments have not been peer reviewed by planners or local government attorneys, and the language will need to be refined.

Mr. Cooper reviewed the proposed changes to Code requirements. He said while the proposed amendments to the language on first tier land (Metro Code 3.01.012(d)) is a major policy change, it still goes back to existing State Goal 2 and Goal 14 criteria. He reviewed the proposed exception language in Metro Code 3.01.012(e)(14)(A).

Councilor Morissette said he is comfortable with the proposed changes.

Councilor Monroe asked if it will be possible to bring new land into the UGB if the existing contiguous cities are unwilling to accept it.

Mr. Cooper reviewed the three existing provisions for bringing land into the UGB, which are listing in Metro Code 3.01.012(e)(1-3). He said the proposed language in 3.01.012(e)(14) would create a fourth option for bringing in land when urban service agreements have not been finished. He said the proposed language would allow the Council to amend the UGB, then put comprehensive plans, implementing ordinances, and zoning ordinances on hold until after service issues are resolved.

Councilor Monroe asked how the possibility of incorporating as a new city would work, in terms of meeting the requirements of providing urban services. Mr. Cooper said there is no exact language, but if an area that included an urban reserves was incorporated as a new city, it would no longer be an issue of annexation. He said incorporating a new city is a separate, longer process.

Councilor Monroe said he believes State law prohibits the incorporation of a new city within three miles of an existing city without the approval of the existing city. Mr. Cooper agreed.

Councilor Monroe asked Mr. Cooper if he believes it will be very difficult to bring lands into the UGB against serious opposition by contiguous cities, because most special service districts have agreements with the existing cities.

Mr. Cooper said in many instances, special service districts do have agreements, but not all of them are in regard to the contiguous cities. He said there are many policy issues here, and if directed by the committee, legal counsel could insert language into the Code to address the creation of a new city as an alternative means for providing services.

Councilor Monroe said he would like to see how it could work, because there are a few places where that could be a realistic possibility.

Mr. Cooper said it is much easier to get services in many parts of the region if an adjacent city agrees to be the service provider and do an annexation.

Councilor Morissette said he knows Councilor Monroe lives near one of the areas which is considering incorporation as a new city. Councilor Morissette said it is important to remember that as the Council moves through the process, the requirements are that 50% of the designated need be available by the end of 1998. He said the committee is trying to deal with that timeline while retaining master planning. He said there are cities in the region that do not want to provide services to urban reserves because they do not want growth there, but in his opinion that is a separate issue from the Council’s requirement to add 50% of the need this year.

Councilor McLain asked Mr. Cooper if it is accurate to say that Metro Code 3.01.012(e)(14)(A) gives another scenario for an exception, if there is neither an opportunity for annexation nor completed urban services agreements, but they have met the quality of a concept plan in a slightly different manner.

Mr. Cooper said Metro Code 3.01.012(e)(14)(A) addresses governance and service provision issues only, and the rest of the planning requirements are in Metro Code 3.01.012(e)(14)(B).

Councilor McLain asked if it is accurate to say that Metro Code 3.01.012(e)(14)(A) requires that urban reserves have an either/or scenario for its service provision, and it is completely dedicated to the area of governance. Mr. Cooper said yes.

Councilor McLain asked Mr. Cooper for a better understanding of Metro Code 3.01.012(e)(14)(B). Mr. Cooper reviewed the requirements in Metro Code 3.01.012(e)(4-13) of the draft. He said under Metro Code 3.01.012(e)(14)(B), the Council could make an exception to any one of the 11 factors, provided that it found it would be feasible that these requirements would be fulfilled in a timely manner through some additional process that the Council was assured would happen after the UGB amendment was adopted, and until the time that the plan was completed with these details, and came back to the Council for adoption and approval, there would be no amendments to comprehensive plans or zoning ordinances for that territory.

Councilor McLain asked if the proposed language creates a condition, and the Council will have the opportunity to review the plan once it is completed.

Mr. Cooper said he has not phrased it as a condition because once the UGB have been moved, the Council will not decide that the condition was not satisfied and un-move the UGB. He said the Council would use its Functional Plan authority to require that there be no comprehensive plan amendments that allowed for any denser development than is currently allowed until the conceptual plan was completed. He said the present zoning would still be in effect, and people would have a right to use their property.

Councilor McLain asked if counties and cities would not be able to make a comprehensive plan change until all of the conditions of the concept plan were completed. Mr. Cooper said yes.

Councilor McLain asked where the language needs to be written, in addition to the Metro Code, in order for this to happen. Mr. Cooper said by putting the requirement in a functional plan, effective immediately, then an adopted comprehensive plan amendment is reversible on appeal.

Councilor McLain said she is concerned that Metro retains the opportunity to review for complete concept conditions before urban reserves can be developed.

Mr. Cooper said the proposed changes to Metro Code will need further review and critique, and is meant to be a starting point.

Councilor McLain asked Mr. Cooper if voting for Metro Code 3.01.012(e)(14)(B) would mean walking away from the concept plan.

Mr. Cooper said no, it is a timing issue. He said if the concept plans are all done before the UGB is moved, then the Council can be absolutely certain that the plans are done. He said if the UGB is moved first with the concept plans to follow later, it is possible that the plan will not be done and there will be land inside the UGB that stays undevelopable for a long time which complicates the Council’s ability to calculate the capacity of the land inside the UGB.

Councilor Morissette asked if the requirements listed are currently in the Functional Plan. Mr. Cooper said the requirements are in the Metro Code, in Acknowledged Urban Growth Boundary Amendment Procedures.

Councilor Morissette asked if each one of the requirements is an acknowledgment that master planning needs to happen before new development happens, short of what is currently zoned on the property.

Mr. Cooper said the proposed language is one way of implementing each of the three recommendations made in Executive Officer Burton’s letter. He said it is a policy decision whether the Council chooses to implement all three recommendations, none of the recommendations, or a combination.

Councilor Morissette asked if the right debate is whether the Council cannot meet half the established need without a modification of the current Code. Mr. Cooper said that is a question for the Council to resolve.

Chair Kvistad said the intent is to give some flexibility without removing the limits, regardless of the direction the Council chooses to go.

Councilor Morissette said he believes a lot of second tier land will fall into this, because a lot of first tier land is not currently being master planned.

Councilor Monroe said he is frustrated because if the Council agrees to the proposed amendments and allows land into the UGB before the concept plans, but does not allow development until the plans are completed, it may meet the letter of the law, but it does not accomplish anything.

Mr. Cooper said the law requires a twenty-year supply inside the UGB, but does not require that all undeveloped land is immediately available for development. He said the phrase “feasible to satisfy those requirements in a timely manner” is an important phrase, because if it is not feasible that the concept plan will be completed in the next 20 years, the Council has not complied with the law.

Councilor Monroe said there would need to be an agreement that the local jurisdiction annexing the urban reserve would move in a timely manner toward achieving a concept plan.

Mr. Cooper said if the Council adopts that provision, and had a circumstance in which land was being brought inside the UGB, and the Council had received a fairly strong assurance from an adjacent city that it would proceed in an orderly fashion to finish the concept plan and return to the Council in 6 to 9 months for formal approval, the Council would meet these tests. He said there may be other methods of assurance.

Councilor Monroe said he asked because there is at least one city in which many of the people wish Metro and the 2040 Growth Concept would disappear, and they are not inclined to be cooperative. He asked if there is anything the Council can to meet its statewide requirements even over obstinate “NIMBY-ism.”

Mr. Cooper said legal counsel will work on it.

Councilor McLain said the Council agreed with MPAC to look at first tier urban land first. She asked Mr. Cooper if the proposed language is not eliminating the Council’s commitment to first tier land; but giving the Council permission to add other urban reserve land if the Council cannot meet part of its criteria or Code. Mr. Cooper said yes.

Councilor McLain asked Mr. Cooper if the Council is suggesting that if it moves the UGB, it has a heavier level of responsibility than it did in its urban reserves decision. She asked if any time the Council changes the UGB it has to have a legal finding that demonstrates that it walked the map and this piece of property is the best piece of property, and follows all codes, including State Goals 2 and 14.

Mr. Cooper said that was a pretty good summary of the requirements. He said the property does not literally have to be the “best,” but each of the individual criteria that are set forth in the Metro Code section, which are based on Goals 2 and 14, do give ability to compare and provide preferences for certain categories of property over others. He said when the Council selects a piece of property, it has to be able to show that the property meets all of the criteria, which in many circumstances are phrased as “no worse” than something else, and not “better than” something else.

Councilor McLain said the Council still has a high requirement for all land, whether first or second tier. Mr. Cooper agreed. She said those are State requirements, and the Council needs good, solid findings because they could be appealed. Mr. Cooper agreed. Councilor McLain asked if all of those provisions would remain very similar, if not the same, as what the Council adopted the last time. Mr. Cooper said they are identical, and the Council is not changing those criteria.

Chair Kvistad said he believes the limited changes brought forward by Executive Officer Burton and staff are pretty solid. He said they keep the limits in place, keep the Council focused on the changes, and most all of the Code stays as adopted and amended earlier. He said the exceptions would allow a little more flexibility on decision making but still retain the limits. He said he is comfortable with the proposed amendments to the Metro Code.

Councilor Morissette suggested the committee direct Mr. Cooper to draft the ordinance and forward it to MPAC with the assumption that there will be revisions to the ordinance as it moves forward. Chair Kvistad agreed.

Councilor McLain asked Mr. Cooper if he would be able to draft an ordinance in time for the MPAC meeting the next day. Mr. Cooper said the information currently in front of the committee could be shared with MPAC, along with a summary of the committee’s conversation and direction to legal counsel, but the ordinance would not be available at that time.

Chair Kvistad said the ordinance will codify the Code changes. He said he will send forward to MPAC the letter from Executive Officer Burton, the proposed timeline, and the Proposed Amendments to Metro Code. He said the committee appears to be comfortable moving forward to produce the ordinance and to elicit general comments from MPAC. He asked Meg Bushman, Council Analyst, to work with Mr. Cooper and Ms. Wilkerson as soon as the ordinance is drafted. He said he has scheduled a Growth Management Committee meeting for July 14, for further committee review, if the committee desires. He said the committee may with to hear MPAC’s reaction the next day before deciding its next action.

Councilor Morissette asked if the committee could discuss it informally, as Councilor McLain will be out of town on July 14.

Chair Kvistad said the committee can decide whether to have a committee meeting or have informal discussions based on what MPAC brings forward. He said if there is a great deal of discussion at MPAC, the committee can decide during full Council on Thursday whether to have a meeting on July 14.

4.  COUNCILOR COMMUNICATIONS

Councilor McLain said she feels comfortable sending the Draft Proposed Amendments to the Metro Code to MPAC for comment.

There being no further business before the committee, Chair Kvistad adjourned the meeting at 2:30 P.M.

Respectfully submitted,

Suzanne Myers

Council Assistant

i:\minutes\1998\grwthmgt\07078gmm.doc

ATTACHMENTS TO THE PUBLIC RECORD FOR THE MEETING OF JULY 7, 1998

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