MINUTES OF THE METRO COUNCIL GROWTH MANAGEMENT COMMITTEE

Tuesday, March 2, 1999

Council Chamber

Members Present:  Susan McLain (Chair), David Bragdon (Vice Chair), Rod Park

Members Absent:    None

Also Present:    Rod Monroe, Bill Atherton, Jon Kvistad

Chair McLain called the meeting to order at 1:33 P.M.

1.  CONSIDERATION OF THE MINUTES OF THE FEBRUARY 22, 1999, GROWTH MANAGEMENT COMMITTEE MEETING

Councilor Bragdon asked that the minutes be amended to clarify that on page 2, paragraph 7, he “. . . noted that in the study, Mr. Conder mentioned that this relationship between output and refill does not appear to exist in Vancouver, British Columbia.”

7.  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

Chair McLain opened an Executive Session pursuant to ORS 192.660(1)(h) at 1:35 P.M.

Present:  Chair McLain; Councilor Bragdon; Councilor Park; Councilor Atherton; Presiding Officer Monroe; Councilor Kvistad; Mike Burton, Executive Officer; Larry Shaw, Senior Assistant Council; Dan Cooper, General Counsel; Michael Morrissey, Senior Council Analyst; Elaine Wilkerson, Director of Growth Management Services; Mark Turpel, Manager, Long-Range Planning, Growth Management Services; Tim Raphael, Executive Office Chief of Staff; Lydia Neill, Senior Regional Planner, Growth Management Services; Joseph Gibbons, Senior Auditor; Pam Wilson, Executive Office Media Coordinator; Beth Anne Steele, Council Public Outreach Coordinator; Karen Blauer, Executive Office Public Affairs Coordinator; Suzanne Myers, Council Assistant; Jeff Stone, Council Chief of Staff; Greg Nokes, The Oregonian; Jill Thompson, The Oregonian; Linda McDonnell, Daily Journal of Commerce

Chair McLain closed the Executive Session at 2:26 P.M.

Chair McLain said the committee heard about the Land Use Board of Appeals (LUBA) decision on the urban reserve rule during executive session. She asked the committee to consider a motion to direct legal counsel to write a request to appeal.

Executive Officer Burton urged the committee to ask legal counsel to draft a resolution authorizing an appeal of the LUBA decision. He said the LUBA findings raise a number of questions that could be best answered in an appeals process. Metro adopted a Vision 2040 Concept Plan, acknowledged by the Land Conservation and Development Commission (LCDC), which appears to conflict with LUBA findings. He said if Metro becomes an intervenor or remains silent on the question of an appeal, Metro will not be able to formulate those issues as it responds in appellate court. He said the appeals process could be the quickest way for the Council to receive answers and direction. If the Council started the urban reserve process again, the new decision could be appealed to LUBA, which would then consist of different people, and Metro could find itself in the same position. He said at the direction of the Council, he intends to continue planning for those urban reserves not challenged by the LUBA decision, such as Pleasant Valley and urban reserve 45.

Chair McLain asked for further discussion or a motion from the committee. She said important questions include to what extend the urban reserve findings are to be included in the comprehensive plans, and the interpretation of key urban reserve requirements to be designated. She said there must be refinement and final decisions made on these elements, and on what that means for Metro to go forward with its work.

Councilor Park asked about the scope of appeal, and said he would prefer to limit it as much as possible.

Mr. Cooper said legal counsel told the committee its serious concerns and the legal issues it would like to see resolved. As Metro’s lawyers, legal counsel has to make judgment calls as it goes through the process. First of all, this is a very fast-track process, and legal counsel will have to prioritize its resources and concentrate on core issues. Nonetheless, as it goes through the process, it may have to make judgment calls on what issues it needs to add in order to be consistent. In the past, legal counsel has tried to work closely with Councilors and the Executive Officer so that it is sensitive to everyone, while recognizing that everybody does not always agree on all of the little points. Legal counsel has been through this before and tries to use its best judgment as professionals to carry out the core interests of the organization. Likewise as lawyers, legal counsel tries not to let its clients control trial tactics. He said it is a fine line and a tough job, and before it is over, legal counsel will probably make everyone mad.

Chair McLain said there will be opportunities along the decision path for Councilor Park to publicly state his position on these issues and how limited he hopes the appeal will be projected by Metro staff. She summarized Mr. Cooper as saying that he will keep all of the Councilors and the Executive Officer informed. She said the appeal would be sent forward by a majority vote of the Council, with guidance from all seven Councilors.

Mr. Cooper said in the past, he has been involved in cases where the last thing the lawyers were expected to do was win the case, and legal counsel plans to improve its results this time.

Councilor Park said he would support the motion with reservation.

Chair McLain asked staff to bring the issue back as soon as possible.

5.  INTERVENOR STATUS WASHINGTON COUNTY - WASHINGTON COUNTY MINIMUM DENSITY ORDINANCE

Mr. Shaw introduced the agenda item. A memo to Chair McLain from Mr. Shaw, dated February 24, 1999, regarding Metro Intervenor Status - Appeal of Washington County Minimum Density Ordinance, includes information presented by Mr. Shaw and is included in the meeting record. He said the appellants and Washington County were invited to the committee meeting to explain what the regional issue is that would have Metro filing an intervenor brief. He said minimum density is a Metro issue, but the mechanism may or may not be a Metro issue.

Brent Curtis, Planning Manager, Washington County, said this issue is important for Metro because the impetus for Washington County’s adoption of Ordinance 517-A was Metro’s Urban Growth Management Functional Plan, which called for minimum densities. He said in his experience, the main reason for Metro’s minimum density requirement was to prevent underbuild. He said Washington County spent a significant amount of time working with West Hills Development and the Home Builders industry in the development of Ordinance 517-A. He said in addition to minimum densities, Ordinance 517-A was meant to encourage a range of housing. He said West Hills and other builders who attended meetings about the ordinance were primarily interested in building detached housing on lands envisioned and planned for multi-family housing.

Kelly Ross, Home Builders Association of Metropolitan Portland, introduced Al Johnson, legal counsel for the Home Builders Association of Metropolitan Portland and West Hills Development, and Ernie Platt of West Hills Development. He said they took great care in their appeal of Ordinance 517-A not to challenge the minimum density requirements of Metro’s Functional Plan, but to challenge some of the implementation steps included in the ordinance.

Al Johnson, Johnson and Sherton, 767 Willamette Street, Suite 203, Eugene, said he worked with Wendie Kellington, Schwabe, Williamson and Wyatt, on the brief. He thanked Chair McLain for taking the agenda item out of order to accommodate his schedule. He said the point of today’s meeting was to discuss Metro’s interest, and as Mr. Shaw noted, they are not challenging Metro’s minimum density requirement in any way. He said the industry is concerned that the additional requirements imposed by Washington County, which extend beyond minimum density requirements, will have an unintended consequence of acting as impediments by inducing people to not build at all by raising the cost, or to have them underbuild. It is theoretically and practically possible to build out to just 59 percent of the maximum density and avoid Ordinance 517-A’s requirement. He said the county never presented any analysis in response to the Home Builders’ concerns during public hearings.

Mr. Johnson said Metro has an interest in allowing local jurisdictions to experiment in various means of implementing. However, he said, Metro does not have an interest in defending a particular mechanism against a challenge that the mechanism has not been adequately supported in the record. He said Metro’s support of Washington County would mean that Metro is essentially defending a presumption that any implementing mechanism complies with its Functional Plan. He said it would place Metro in a poor position in the future as an enforcer of its regional goals. He said they want to continue working with Washington County. They only filed the appeal because Washington County told them it was not interested mediation or a voluntary remand, and it was necessary for the industry to preserve its position. He said the appeal could be suspended for a reasonable amount of time while a solution is found. He said they do not believe Metro has any real interest in intervening at this time.

Chair McLain said the committee invited Mr. Johnson and Mr. Curtis to the meeting to hear about the issue before voting on whether to intervene. She said the deadline to file a brief is March 9, 1999, and no decision to intervene has been made yet. She asked Mr. Curtis to respond.

Mr. Curtis said Metro’s planning interests emanate from two elements in the Functional Plan: the minimum density requirements, and the provision to remove provisions in jurisdictions’ zoning ordinances that frustrate the goals of the Functional Plan. The County spent six intensive months on one piece of property with West Hills Development about the issues of underbuild and what Mr. Shaw called “density dumping.” Then the County spend six intense months holding a series of working meetings with the Home Builders and West Hills Development. They went over every issue and concluded with several fundamental points. West Hills Development told the Growth Management Committee that it is not opposed to the Functional Plan requirement for minimum densities; it told Washington County that it does not want any zoning regulations beyond the Functional Plan requirements. The County chose to address issues such as side yards, on-street parking, and minimum lot sizes to establish community standards to allow for detached dwellings in multi-family districts. He said it is a situation of single-family home builders delivering denser products, which is desirable, but they are consuming land that has a much higher capacity.

Mr. Curtis presented to the committee two plat maps of a development at 185th Avenue and West Union Road. He said the 20-acre piece of property was originally zoned R-15 and R-24 (residential 15 units per acre and residential 24 units per acre). Three legal entities came to the County and initiated a plan amendment to change the property closest to the intersection of 185th and West Union to retail commercial and office commercial, and then replan the rest of the property to R-24, keeping the original housing capacity. About half-way through the project, the original developer dropped out and was replaced by West Hills. He said they negotiated a 2040-style plan with main street design treatments and a mix of housing types, strong streetscapes and public openspace. He said the plan West Hills Development eventually submitted moved from the originally proposed 54 assisted living units per acre on about 2.5 acres, to 115 units per acre on about one acre. West Hills said its model was the University Park Apartments in downtown Portland, and it would be built after a number of factors were met, including subsidies. He said the County is concerned about the issue of delivering built product. He said Metro’s interests are avoiding the underbuild and getting zoning regulations that will delivery the 80 percent minimum density housing capacity in the real world as opposed to a planning exercise.

Chair McLain thanked everyone for testifying. She said the issue is not up for committee action at this time. She asked Mr. Shaw if he had questions or a scenario of possible committee actions.

Mr. Shaw said in the legal brief, Mr. Johnson claims that these additional provisions beyond the minimum density violate Metro’s Functional Plan. He asked an alleged violation of Metro’s Functional Plan is not in Metro interest.

Mr. Johnson said it depends on the violation, and it may be in Metro’s interest to join the Home Builders in their appeal. He said the information given in committee by Mr. Curtis is not part of the record that will go to LUBA. The record includes testimony from home builders who said the additional requirements would result in further underbuild, and neither Mr. Curtis nor the County’s attorneys responded to those allegations in the record.

Mr. Shaw said if Metro disagrees with Mr. Johnson’s assertion, Metro might decide to assist Washington County by stating was it thinks does and does not violate its Functional Plan. Mr. Shaw asked Mr. Curtis if he had said that Washington County is allowing single-family developers to build single-family dwellings on land zoned for multi-family.

Mr. Curtis said Washington County does not want to plan for one enormous, multi-family dwelling surrounded by single-family dwellings on spacious lots in order to meet minimum densities. He said Washington County decided it needed more mixed-use environments, included a mix of housing. He said the County was encouraging the type of design originally proposed.

Mr. Shaw asked if Ordinance 571-A says there is an 80 percent density requirement on land zoned multi-family. He asked if developers are allowed to build single-family houses without a master plan to demonstrate how mixed-use would occur.

Mr. Curtis said yes, but they are required to go through development review and create the lots.

Mr. Shaw said Mr. Curtis mentioned that master plans may be involved. He asked if the County would use the master plan to guarantee the mixed-use development. Mr. Curtis said yes.

Joanne Rice, Senior Planner, Washington County, added that Washington County’s goal was to promote a mixture of housing types. She said the County tried to find a balance between providing the development community with as much flexibility as possible while ensuring that the development proposals submitted would be projects that would build.

Chair McLain said the committee will give recommendations to staff or the full Council on how to proceed.

Councilor Park stated for the record that he has had contact with West Hills Development on a separate matter. He said it is not a conflict of interest.

2.  URBAN GROWTH REPORT

• CONTINUED REVIEW OF RESIDENTIAL REFILL
• CAPTURE RATE

Chair McLain reviewed the Draft 1999 Urban Growth Report Work Program, a copy of which is included in the meeting record. She asked the committee if it had any direction to give to staff concerning residential refill.

Councilor Bragdon said the memo from Sonny Conder, Data Resource Center, on Growth Management Committee Questions lists some of the obstacles to infill and redevelopment. A copy of the memo is included in the meeting record. He said at the last committee meeting, Mr. Turpel talked about the value of positive examples, and he would like to follow up on Mr. Turpel’s suggestion of sharing positive information.

Councilor Park said developments with trees consistently receive higher ratings.

Chair McLain said the committee should remember its discussion about refill as it continues to review the other elements of the Urban Growth Report. She said the refill report is scheduled to go to the Metro Technical Advisory Committee (MTAC), which will forward it to the Metro Policy Advisory Committee (MPAC), and MPAC will give any recommendations to the Council.

3.  RESOLUTION NO. 99-2759, FOR THE PURPOSE OF COMPLETING APPOINTMENTS TO THE AFFORDABLE HOUSING TECHNICAL ADVISORY COMMITTEE; AND CONFIRMING THE CHAIR AND VICE CHAIR

Gerry Uba presented Resolution No. 99-2759. A staff report to the resolution includes information presented by Mr. Uba and is included in the meeting record.

Councilor Bragdon will carry Resolution No. 99-2759 to the full Metro Council.

2.  URBAN GROWTH REPORT (Continued)

• CONTINUED REVIEW OF RESIDENTIAL REFILL
• CAPTURE RATE

Chair McLain said today’s meeting would be an introduction to the capture rate, and the committee would address it further at the next meeting.

Dennis Yee, Senior Economist, Data Resource Center, briefly summarized the staff report to the consideration of the capture rate, and reviewed a set of tables which came from the staff report. The staff report and tables include information presented by Mr. Yee and are included in the meeting record.

Chair McLain asked the committee to review the information provided from Mr. Yee for the next committee meeting.

4.  URBAN RESERVE URBAN GROWTH BOUNDARY (UGB) CODE AMENDMENTS

Ms. Neill briefly reviewed the proposed discussion draft to amend Chapter 3 of the Metro Code. A staff report to the discussion draft ordinance includes information presented by Ms. Neill and is included in the meeting record. She said there are four general areas in which staff is requesting clarification: 1) urban reserve plan requirements, 2) locational adjustment and major amendment processes, 3) resolution of intent procedures, and 4) notice requirements subject to Ballot Measure 56.

Chair McLain said at the next meeting, the committee will discuss the capture rate and amendments to the Metro Code.

The committee directed staff to take the proposed Code amendments to MPAC for review.

6.  HAZARD MITIGATION POLICY AND PLANNING GUIDE

Chair McLain moved agenda item six to the next committee meeting.

8.  COUNCILOR COMMUNICATIONS

There were none.

There being no further business before the committee, Chair McLain adjourned the meeting at 3:31 P.M.

Respectfully submitted,

Suzanne Myers

Council Assistant

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ATTACHMENTS TO THE PUBLIC RECORD FOR THE MEETING OF MARCH 2, 1999

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