METRO COUNCIL GROWTH MANAGEMENT COMMITTEE

Wednesday, August 12, 1998

Council Chamber

Members Present:  Jon Kvistad (Chair), Don Morissette

Members Absent:    Rod Monroe

Also Present:    Susan McLain

Chair Kvistad called the meeting to order at 1:10 P.M.

1A.  ORDINANCE NO. 98-770, FOR THE PURPOSE OF AMENDING FIRST TIER AND URBAN RESERVE PLANNING REQUIREMENTS FOR URBAN GROWTH BOUNDARY AMENDMENTS

1B.  ORDINANCE NO. 98-772, FOR THE PURPOSE OF AMENDING FIRST TIER AND URBAN RESERVE PLANNING REQUIREMENTS FOR URBAN GROWTH BOUNDARY AMENDMENTS AND ESTABLISHING PRIORITIES FOR INCLUDING LAND IN THE URBAN GROWTH BOUNDARY

Dan Cooper, General Counsel, updated the committee on Ordinances Nos. 98-770 and 98-772. He said Ordinance No. 98-770 was drafted at the request of the committee, and is based on the July 7, 1998, draft code amendments presented to the committee at that time. The substance of Mr. Cooper’s remarks are included in the staff report.

Councilor McLain said the purpose of Ordinance No. 98-772 is to give more certainty and clarity to people preparing concept plans. She directed the committee’s attention to the Urban Growth Boundary (UGB) Amendment Code Revision Comparison Chart, a copy of which is included in the meeting record. She

summarized the purpose of the ordinance and distributed copies of three memos from Mr. Cooper to herself. Copies of the memos are included in the meeting record. The substance of Councilor McLain’s remarks are included in the memo regarding Ordinance No. 98-772.

Mr. Cooper summarized the differences between Ordinances Nos. 98-770 and 98-772. He then reviewed his memo on the UGB amendment process. Mr. Cooper described the process of adding land to the UGB under Ordinance No. 98-772.

Chair Kvistad asked if all Goal 14 requirements must be met under either ordinance. Mr. Cooper said yes, all Goal 14 requirements must be met in any situation except a locational adjustment.

Chair Kvistad asked Mr. Cooper to clarify the concept plan adoption requirement. Mr. Cooper said the proposed Urban Growth Management Functional Plan title would add a requirement that would effectively freeze existing rural zoning until the Metro Council approves the full concept plan, and the concept plan is adopted by all governments having jurisdiction into their comprehensive plans.

Chair Kvistad asked if the Metro Council has the authority to freeze zoning in an area even if it does not move the UGB to include that area. Mr. Cooper said the current Land Conservation and Development Commission (LCDC) rule prohibits up-zoning in designated urban reserves. He said after the land is added to the UGB, LCDC’s rule is no longer applicable, and Metro, in effect, would be continuing LCDC’s restrictions until the concepts are approved and adopted.

Chair Kvistad asked Mr. Cooper to clarify the Goal 14 coordination requirements. Mr. Cooper said Metro criteria #13 for concept plans requires coordination. He said the Goal 14 requirements addressed by Dick Benner, Director of the Department of Land Conservation and Development (DLCD), also imply coordination of plans. He said the issue is not perfectly clear, but a strong case could be made that moving the UGB without coordination with affected local governments could violate Goal 14.

Larry Shaw, Senior Assistant Counsel, explained the definition of coordinate. He said coordination in land use law has always been a principle of notice and opportunity to be heard, and not a requirement of agreement or concurrence. He said more specificity in how the Council meets its requirement is included in the urban reserve plan requirements, and was developed in partnership with MPAC.

Chair Kvistad said at the MPAC meeting, Mr. Benner said first tier is not necessarily functional. He asked Mr. Cooper to explain how the new proposed first tier relates to Mr. Benner’s comments at MPAC.

Mr. Cooper said the term “new first tier” may be confusing and could be changed. He said he agrees with Mr. Benner that the Council could eliminate first tier designation as currently adopted. He said the first tier process set up in Ordinance No. 98-772 is a way of prioritizing land for inclusion in the UGB where there are findings that it does satisfy Goal 14 and there is a strong case for believing all of the conceptual plan requirements can be completed within six months. He said the label is unimportant: it could be called priority 1 land, priority 2 land, or any other term.

Councilor Morissette proposed to move Ordinance No. 98-772 and offer amendments. He said he did not have specific language prepared yet, but said he wanted to draft his intent as the committee votes the ordinance out of committee. He said he wants to add territory to the UGB based on the new priority system, maintain the requirement that the governance and service agreements be completed within six months, require local jurisdictions to maintain current zoning until six months deadlines, and if governance and service agreements are not completed by six months time frame, the appropriate county will assume governance. He asked Mr. Cooper for assistance drafting his amendments, and asked Councilor McLain for her comments. He said he understands that Ordinances Nos. 98-770 and 772 are works in progress, and said he has no problem with clarifying language changes or rewrites. He said as the ordinance is modified, he wants to maintain the commitment to move the boundary this year to accommodate half the established need, and that master planning will be done over a time-certain period.

Mr. Cooper said he will work with Councilor Morissette to draft his amendments.

Chair Kvistad asked if Ordinance No. 98-772 allows the Council to include land in the UGB if a jurisdiction refuses to provide services.

Mr. Cooper said the Council will have to make findings that services can be provided in an orderly, economic fashion. He said a local government which comes to the Council with concerns about service provisions and costs will be able to create a good case if it has facts that are not rebutted. He said this scenario is different from a government that may have every capability of providing services but chooses to not do so for reasons that are not supported by facts in the record relating to the orderly provision of services.

Chair Kvistad asked if there are any changes made in the ordinance that will strengthen Metro’s case. Mr. Cooper said no.

Chair Kvistad said he has received testimony cards on this agenda item, but had not intended to open a public hearing at this meeting. He asked Councilors McLain and Morissette to respond to his concern that the ordinance could add an additional hurdle to the process of expanding the UGB.

Councilor McLain said the goal of Ordinance No. 98-772 is to respond to requests made by members of MPAC who want the ability to understand the priorities on which the Council will vote. She said the ordinance supports the comments made by Rob Drake, Mayor of Beaverton, and Mr. Benner, and helps the Council do its job with a better set of criteria than it has had in the past.

Chair Kvistad said he is comfortable changing the term “tier one” to “priority one,” or a similar name, to make the ordinance less confusing.

Mr. Cooper said he would look for a better label, because the current first tier land and the new first tier proposed in Ordinance No. 98-772 are two very different concepts.

Councilor McLain said the goals and concept plan requirements remain the same, however. Mr. Cooper agreed.

Councilor Morissette reviewed his amendments. He said that opposed to moving the boundary after all the requirements are met, the Council will move the UGB in advance. He clarified that if the necessary master planning and governance agreements are not completed, the land is not removed from the UGB; instead the issues need to resolved through local jurisdictions. He said he is proposing two basic changes to Ordinance No. 98-772, and he has no problem in clarifying the language so that it meets the requirements under the law. He said he assumes that the document the Council sees next time it visits the issue, hopefully tomorrow, will look significantly different. He said he wants to ensure that the intent of Ordinance No. 98-772 stays intact, with the addition of his two modifications.

Mr. Cooper said he understood from Councilor Morissette’s previous statement that he should prepare amendments to move into the ordinance the next time it is heard at Council. He said procedurally, legal counsel is not able to take Councilor Morissette’s statement of intent and craft language to carry forward as an “A” version at this time. He said he would work with Councilor Morissette to draft the language, and then present the amendments when the ordinance comes before Council.

Councilor Morissette said he thought he was moving Ordinance No. 98-772 as drawn, with the assumption that there will be two modifications.

Mr. Cooper advised Councilor Morissette that the proper procedure would be to move the ordinance, then have legal counsel prepare his amendments, to be considered at that time. He said if Councilor Morissette wants his amendments included in the ordinance before it is heard at full Council, they will need to be written, inserted by the committee, and referred to Council as an “A” version. He said it is not proper to send the ordinance to full Council, delegating him to draft language on which the committee has not had an opportunity to vote.

Councilor Morissette asked if the committee can move the ordinance with the assumption that it the committee does not approve of Mr. Cooper’s language, it can be referred back to committee. Mr. Cooper said the ordinance could also be further revised in Council.

Councilor Morissette asked Councilor McLain to comment on his proposals.

Councilor McLain said from the beginning of this conversation almost two months ago, she agreed that it is important for the Council to show as much movement of effort on this process as possible. She said she is still committed to thoroughly reviewing the process with the committee and the full Council. For the record, she said she is interested in Councilor Morissette’s proposal as far as making sure that whatever process is adopted, notwithstanding that the Council will do Goal 14 and concept planning, is done pragmatically and in a time frame. She agreed with Mr. Cooper that it is extremely important to review the language together, either in committee or at the full Council. She said she is interested in both of Councilor Morissette’s amendments.

Councilor Morissette asked if it would be better for him and Councilor McLain to co-request that Mr. Cooper draft the language. He said he is not concerned about the exact language; rather he wants to change the intent that delays the movement of the UGB to comply with state law.

Councilor McLain said she does want to move forward, she does want to follow state law and move 50 percent of the need, but her bottom line is that she wants to be sure that the Council has reviewed the Goal 14 and the concept plan requirements and can say that they have been completed. She asked Councilor Morissette if he believes his amendments would accomplish that.

Councilor Morissette said yes. He said his goal is to avoid moving land in and then out of the UGB.

Councilor McLain said they seem to agree, but she believes language in Ordinance No. 98-772 already addresses Councilor Morissette’s concern. She said she supports a time frame, but she wants to review the actual language.

Councilor Morissette said Mr. Cooper understands his intent, and he will trust Mr. Cooper to meet his intent to the best of his ability.

Councilor McLain asked Mr. Cooper to summarize the differences between the current language in Ordinance
No. 98-772 and Councilor Morissette’s request.

Mr. Cooper said the legislative process, adopted by the Council, dictates that the committee needs to move the current language to the full Council, and at the Council’s next work session, someone can move Councilor Morissette’s amendments. He said this is the process the Council needs to follow to have an orderly debate and properly notice people. He said there are many nuances in terms of Councilor McLain and Morissette’s technical questions, and it might be useful to work together to draft language to which they both agree.

Councilor Morissette withdrew his motion to move Ordinance No. 98-772, but said he would like to discuss the item tomorrow at Council during Councilor Communications. He said he will present amendments at the next opportunity.

Councilor McLain asked if there could be a movement by the Council to either be invited to the next Growth Management Committee meeting or keep the ordinance at the Council level.

Chair Kvistad said no, the Council cannot vote on the ordinance until it is out of committee.

Councilor Morissette asked if, due to the tight time frame, the ordinance could be discussed as a document at Council on August 13, assuming he and Councilor McLain agree to the language.

Chair Kvistad said the ordinance cannot be an action item. He directed Councilor Morissette and McLain to work together with Mr. Cooper to try and reach a general agreement, and it will be discussed in Council. He said if there appears to be general agreement at Council, it will be moved forward to MPAC. He said the ordinance has been first read, and he recommended that the motion to substitute be made in committee.

Mr. Cooper said the Council needs to have the proposed, final ordinance published, available, and on an agenda the week before the vote. He said if the “A” version is written and agreed to, it needs to be in the record and noticed at the Council meeting in which it will be adopted.

Chair Kvistad recommended a motion to substitute Ordinance No. 98-772 for Ordinance No. 98-770, including the conceptual amendments before the committee, and send it to the Council for broader discussion. He said the committee can agree that it will move forward with Ordinance No. 98-772, or it can leave both Ordinances
Nos. 98-770 and 98-772 on the table.

Councilor Morissette said he has no problem moving Ordinance No. 98-772 with the two modifications he discussed.

Councilor McLain said she and Councilor Morissette want to make sure they do not box in legal staff by requesting language that cannot be drafted.

Chair Kvistad clarified that there would be no vote in Council on August 13. He said the committee has three options: 1) to keep the current language without modification, 2) move the preliminary draft, Ordinance No. 98-770, or 3) move Ordinance No. 98-772.

Mr. Cooper said the item is noticed for discussion at the Council meeting tomorrow, and the next Council meeting will be on September 3, 1998. He said the 45-day notice submitted to DLCD listed September 10, 1998, as the date for the final hearing and action. He said this gives time to discuss the ordinance tomorrow at Council, and if an “A” version is not completed by that time, it will be by September 3, 1998. He said the “A” version could be substituted on September 3, and moved forward to September 10, 1998, for final adoption and public hearing. He said this is the fastest timeline the Council can follow due to the 45-day notice.

Chair Kvistad said if the committee can reach an agreement, he would rather move forward to Council with one ordinance instead of both.

Councilor Morissette said if the Council does not reach consensus tomorrow, the committee can hold an extra meeting to vote one of the ordinances out of committee. He said Chair Kvistad could also pull the ordinance out of committee, and put an “A” version on the Council agenda.

Chair Kvistad said he will send both ordinances forward for discussion the next day in Council.

2.  EXECUTIVE SESSION, HELD PURSUANT TO ORS 192.660(1)(h), TO CONSULT WITH LEGAL COUNSEL CONCERNING THE LEGAL RIGHTS AND DUTIES OF A PUBLIC BODY WITH REGARD TO CURRENT LITIGATION OR LITIGATION LIKELY TO BE FILED

Chair Kvistad opened an Executive Session pursuant to Oregon Revised Statutes (ORS) 192.660(1)(h) at 2:17 P.M. to discuss Ordinance No. 98-769.

Present:  Chair Kvistad; Councilor Morissette; Councilor McLain; Dan Cooper, General Counsel; Larry Shaw, Senior Assistant Counsel; Joe Gibbons, Senior Auditor; Meg Bushman, Council Analyst; Suzanne Myers, Council Assistant

Chair Kvistad closed the Executive Session at 2:35 P.M.

3.  COUNCILOR COMMUNICATIONS

Councilor Morissette thanked Chair Kvistad for holding a special meeting.

There being no further business before the committee, Chair Kvistad adjourned the meeting at 2:36 P.M.

Respectfully submitted,

Suzanne Myers

Council Assistant

i:\minutes\1998\grwthmgt\08128gmm.doc

ATTACHMENTS TO THE PUBLIC RECORD FOR THE MEETING OF AUGUST 12, 1998

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

Testimony Cards Submitted:

Greg Leo

Lee Leighton