Testimony on Metro Urban Growth Boundary Expansion Proposals

Mary Kyle McCurdy
Mon, 09/17/2018 (All day)

September 17, 2018

Metro Council President Hughes
Metro Council
600 NE Grand Ave
Portland, OR 97232

Re:  2018 Growth Management Decision: Chief Operating Office Recommendation

Dear President Hughes and Council Members:

1000 Friends of Oregon supported the new structure that Metro is using to evaluate whether an expansion of the regional urban growth boundary (UGB) is needed and, if so, into which part of the urban reserves and under what conditions that expansion should take place.  This structure, and our support for it, has been almost a decade in the making, including: helping to develop and get passed legislative authorization for the region to adopt urban and rural reserves; participating in all levels of the decision-making leading to final designation of rural and urban reserves; supporting altering the time frame within which Metro can consider overall UGB expansions; and now participating in decisions about whether to expand into urban reserves and evaluating concept plans if a need is shown.

As described in many Metro statements, including the Chief Operating Officer’s (COO) recommendation, this structure should result in certainty about where and when urban expansion will occur (and where it will not) and better up-front planning to ensure governance and infrastructure planning and financing needs are addressed and, very importantly, to ensure that the needs of the region’s current and future residents are met.   

Metro engaged in and adopted several other land use and transportation plans during the same time frame leading up to this UGB decision, which are related and must be integrated into it.  Every city in the Metro region, including those that proposed UGB expansions, has been closely engaged in these other related planning processes, which include: Metro’s Equitable Housing Plan, Climate Smart Communities Strategy, Regional Transportation Plan including the Active Transportation Plan, and the Six Desired Outcomes.  The requirements and expectations, for both Metro and any cities proposing an expansion, for the 2018 growth management decision have been clearly developed and laid out for many years.

That is why 1000 Friends expected more from the UGB expansion proposals than what was submitted in two main areas—housing and transit.  While we appreciate the great deal of time, information, and experience that each city put into its submittal, and that we as a region are having this discussion at all, we should expect more, the region’s residents deserve more, and the law requires it. 

As described below, we believe that most of the submissions can be revised to better achieve the outcomes embedded in the laws related to Metro’s UGB expansion and the documents listed above, within the Metro Council’s 2018 decision time frame. 

Our recommendation is also generally consistent with the observations made by the COO.  The COO stated, “I recommend that the Council place several conditions on any UGB expansions,” and then listed these “conditions” but described them as “expectations.”[1]  Here, we describe why the Council must require revisions to the proposals and/or place legally enforceable conditions or reject a submission.  We also describe why the Metro Council has the authority and the obligation to require these revisions, prior to approving any UGB expansion.[2]  Finally, the Metro Council should ensure that any conditions it enacts are enforceable. We urge the Metro Council to direct its legal counsel to explore Metro’s ability to condition a UGB expansion on completion of certain actions within a specified time frame, or else the UGB expansion will not occur.

Housing Diversity, Affordability, and Location

There are several Metro Code requirements with which each proposal must demonstrate compliance related to housing.  These include, but are not limited to:

MC 3.07.1425(c):
(1) Efficient accommodation of identified land needs
(5) Equitable and efficient distribution of housing and employment opportunities throughout the region.

MC 3.07.1425(d):
(2) Whether the area has been concept planned consistent with section 3.07.1110 of this chapter;
(3) Whether the city responsible for preparing the concept plan has demonstrated progress toward the actions described in section 3.07.620[3] of this chapter in its existing urban areas;
(4) Whether the city responsible for preparing the concept plan has implemented best practices for preserving and increasing the supply and diversity of affordable housing in its existing urban areas; and
(5) Whether the city responsible for preparing the concept plan has taken actions to advance Metro’s six desired outcomes set forth in Chapter One of the Regional Framework Plan.

MC 3.07.1110(b):
(2) If the plan involves fewer than 100 acres or proposes to accommodate only residential or employment needs, depending on the need to be accommodated:

(A) A range of housing of different types, tenure and prices addressing the housing needs in the prospective UGB expansion area in the context of the housing needs of the governing city, the county, and the region … in order to help create economically and socially vital and complete neighborhoods and cities and avoiding the concentration of poverty and the isolation of families and people of modest means;

These Metro Code requirements are reflected in the evaluation factors that Metro provided to all cities considering proposing a UGB expansion adjacent to their city.  Metro summarized these well in Factor 1: 

            “[Whether the] housing needs of people in the region, county and city have been considered:

  • Is the city planning for a variety of housing types that can address the needs of diverse household sizes and incomes in the proposed expansion area?
  • How well is the city meeting those needs within its existing boundaries?”[4]

Finally, Goal 10, among other things, requires each city to have an acknowledged Housing Needs Analysis (HNA). Prior to any UGB expansion, a city must show how it is currently complying with that HNA and how it will continue to be in compliance with that HNA with the proposed UGB expansion. Goal 14 requires Metro to demonstrate how the region’s housing needs under Goal 10 are being met within the current UGB and how they will continue to be met if the UGB is expanded.  This includes housing “at price ranges and rent levels which are commensurate with the financial capabilities of Oregon households and allow for flexibility of housing location, type and density.”[5]

None of the proposals fully meets these legal requirements, and Metro will not be meeting its own Code and state law if it were to approve any of these proposals without requiring conforming changes prior to the land coming inside the UGB. 

Metro has the authority to require, as part of an ordinance approving a UGB expansion, that the relevant city amend its comprehensive plan and zoning codes to meet the directives and conditions the Metro Council choses to include in the ordinance, and to take enforcement action if they do not.  MC 3.07.810; 3.07.850; 3.07.1110(d); 3.07.1120(c).  Among other things, Metro has the authority to require:[6]

  • “design type designations assigned by the Metro Council in the ordinance adding the area to the UGB”
  • “[p]rovisions that ensure zoned capacity for the number and type of housing units, if any, specified by the Metro Council”
  • “[p]rovisions for affordable housing”

It is imperative that the Council clearly state the conditions and requirements that must be met prior to any UGB expansion, and in any future land use and transportation plans and codes, before Metro approves any area to come into the UGB.  And, Metro must make clear the enforcement actions it will take if a jurisdiction fails to comply.  Finally, no UGB expansion should be made if the proposing city is out of compliance with any current Metro or state housing requirements, such as for accessory dwelling units (see below), since ADU provisions have been in the Metro Code since 1997.

The compliance history of Metro and the local governments within its jurisdiction is spotty, especially related to housing.[7]  Continuance of this is inexcusable, especially in a time of widespread housing shortages and acute needs.  And, it is difficult to ask the region’s residents to support an affordable housing bond measure if the local governments and Metro are not meeting current housing requirements.

Following are some ways in which the proposals and Metro’s recommendation fall short of the Metro Code and Goal 10 and 14 requirements.

I.          Housing Needs Analysis
In most, if not every, proposal it was difficult to connect how the housing proposed for the UGB expansion directly related to the city’s HNA.  Each proposal included a fair amount of discussion about overall city housing patterns, but lacked an explanation of how the proposed expansion area would help meet the overall housing needs—tied to its HNA, as required by Goals 10 and 14 and related statutes.  1000 Friends submitted to Metro, on June 29, 2018, detailed comments on each city’s submission, including specifically how the proposals are not clearly linked to the city HNA.  We attach those here rather than repeat them.

Therefore, it was also difficult to determine whether any of the proposals meet Metro Code requirements for an “Equitable and efficient distribution of housing,” (MC 3.07.1425(c)(5)); whether the city has “implemented best practices for preserving and increasing the supply and diversity of affordable housing in its existing urban areas” (MC 3.07.1425(d)(4)); and whether the city has implemented a “range of housing of different types, tenure and prices addressing the housing needs in the prospective UGB expansion area in the context of the housing needs of the governing city, the county, and the region.” (MC 3.07.1110(b)(2)(A)). 

Moreover, it is not clear, based on the submissions and the COO Recommendation, how Metro will be able to make findings that these Metro Code provisions are met.

II.        Diversity of Housing Location, Type, and Density
All the proposals contained segregated areas for single-family (SF) detached housing, and often segregated areas for what is sometimes called “missing middle” housing.  They also lacked higher density multifamily.  There is no explanation for how perpetuating segregated, exclusionary areas for single-family housing meets Metro Code requirements for an “equitable and efficient distribution of housing” (MC 3.07.1425(c)(5)), and whether the city has implemented a “range of housing of different types, tenure and prices addressing the housing needs in the prospective UGB expansion area in the context of the housing needs of the governing city, the county, and the region.” (MC 3.07.1110(b)(2)(A)).

As demonstrated by Metro’s urban growth report and the existing HNAs of each city, family size is decreasing, the population is aging, almost two-thirds of all households consist of one or two persons, and the region has experienced a large and sustained demand for smaller, attached housing types, especially in walkable, mixed use areas.  Continuing to segregate detached SF housing does not meet this need.  

The Metro Council’s advisory group appointed to review the individual city proposals, on which 1000 Friends served, concluded that segregating SF housing in new greenfield areas of UGB expansions is not the housing pattern the region should endorse to meet the housing needs of current and future residents.

Continuing to isolate SF detached housing from more diverse, smaller, attached housing is economically exclusionary and therefore has a demonstrably larger impact on lower income people and people of color.  Therefore, it will also violate Metro’s Six Desired Outcomes;[8] in particular:

1. People live, work and play in vibrant communities where their everyday needs are easily accessible.
2. Current and future residents benefit from the region's sustained economic competitiveness and prosperity.
6. Equity exists relative to the benefits and burdens of growth and change to the region’s communities.

These four proposed expansions represent an opportunity to plan for the communities of the future and not zone them as we have neighborhoods since the 1950s, which no longer meet household needs or community values.

Again, 1000 Friends specifically addressed this issue for each city in our attached comments of June 29, 2018, and we incorporate those here.  To meet Metro Code, the Six Desired Outcomes, and state law requiring cities to provide for the housing needs of all in “location, type and density,” the cities should allow, as of right, diversity of housing on every lot, including 2-, 3-, and 4-plexes, cottage clusters, and other similar missing middle housing.  

III.       Accessory Dwelling Units: SB 1051 and Metro Code
The 2017 Oregon legislature passed SB 1051 requiring, among other things, the following regarding accessory dwelling units (ADUs):

(5)(a) A city with a population greater than 2,500 or a county with a population greater than 15,000 shall allow in areas zoned for detached single-family dwellings the development of at least one accessory dwelling unit for each detached single-family dwelling, subject to reasonable local regulations relating to siting and design.

(b) As used in this subsection, “accessory dwelling unit” means an interior, attached or detached residential structure that is used in connection with or that is accessory to a single-family dwelling.

Metro Code Title 1, section 3.07.120 has required, since 1997 (with some revisions along the way), the following regarding ADUs:

(g) A city or county shall authorize the establishment of at least one accessory dwelling unit for each detached single-family dwelling unit in each zone that authorizes detached single-family dwellings. The authorization may be subject to reasonable regulation for siting and design purposes.

Under long-standing state statutes, as reinforced by SB 1051, any regulations relating to ADUs must also be “clear and objective.” ORS 197.307 

Local governments, including every city within the Metro regional boundary, must comply with the ADU portion of SB 1051 by July 1, 2018.  Based on the COO’s recommendation, it appears that the four submitting cities are not in compliance with SB 1051 regarding ADUs, and therefore likely are not even in compliance with Metro’s Code, although it has been in place much longer.  No city UGB expansion submission should be approved prior to this being rectified, citywide. 

  • Beaverton: The city’s proposal states that “the city’s regulations are close to meeting the requirements of SB 1051, and will be updated soon (the city will accept applications for ADU development consistent with SB 1051 in the interim).”[9]  The COO states that “the city’s Housing Options Project will allow the city to update its code for ADUs.”[10]  Neither of these statements is legally sufficient.  Unless Beaverton has acted since the COO’s review, the city’s current ADU ordinance is out of compliance with state statute and has been out of compliance with Metro code, quite possibly for years.[11]
     
  • King City: As noted by the COO, King City’s current code effectively prohibits ADUs by: allowing them only on lots that are larger than King City’s maximum lot size; by unreasonably limiting their square footage; and by not providing clear and objective standards for ADUs.[12]  Thus, King City is not in compliance with current state statute and apparently has not been in compliance with long-standing Metro Code.[13]
     
  • Wilsonville: According to the COO, Wilsonville is not yet in compliance with the ADU requirements of SB 1051.[14]  Therefore, that likely means that Wilsonville is also out of compliance with long-standing Metro code.
     
  • Hillsboro: Like the other cities, Hillsboro requires an off-street parking spot for an ADU.  As described in the next bullet, this fails to conform to state statute and Metro code.
     
  • All cities: SB 1051 allows only reasonable ADU regulations relating to siting and design.  Requirements for an additional off-street parking place for an ADU are not related to siting or design of the ADU and therefore are illegal and must be eliminated from any existing city code—not just for the proposed expansion area but for any area in the city to which SB 1051 applies.  Requiring an off-street parking spot is also recognized as one of the primary “poison pills” that ensure an ADU will not be built, because of the cost of providing the parking spot and/or the fact that making room for an off-street parking spot makes adding an ADU physically infeasible.[15]  In addition, it is contrary to the region’s and state’s greenhouse gas reduction planning.  The region, every city, the state, and the country are over-parked, providing about eight times as many off-street parking places as there are cars.  Adding more spaces is both unneeded and encourages driving.  
     
  • All cities: Homeowner association (HOA) regulations or covenants and restrictions that are contrary to state land use laws are not enforceable, including any regulating ADUs or other Goal 10 elements.  Local governments that adhere to private restrictions in HOA documents put the city in peril of violating Goal 10.  Exclusionary single-family zoning that attempts to preclude ADUs and any future zoning—such as for smaller lots, attached housing, multifamily housing and more—means that city is not meeting or likely will not meet the housing needs of all its residents.  Any such restrictive HOAs are also contrary to Metro’s Six Desired Outcomes. In particular, they would violate these outcomes:

1. People live, work and play in vibrant communities where their everyday needs are easily accessible.
6. Equity exists relative to the benefits and burdens of growth and change to the region’s communities.

Metro should require that, in advance of approving the UGB expansion, any city desiring a UGB expansion adopt an ordinance disallowing homeowner association and similar restrictions that are or could be contrary to state land use laws. This is consistent with the COO recommendation.[16]

IV.       Housing Affordability
Metro Code requires that local governments establish voluntary affordable housing production goals, and report on progress towards those goals.[17]  We did not see compliance with this reported on in the city submissions. 

Metro Code also requires that cities include—in their plans and ordinances—strategies that “ensure a diverse range of housing types” and implementation measures that “maintain the existing supply of affordable housing as well as increase the opportunities for new dispersed affordable housing within their boundaries.”[18]  Metro emphasized the need to integrate and disperse diverse and affordable housing in the expansion areas in its specific instructions for this UGB expansion.[19]  Not only are these requirements not addressed in the submissions, either citywide or in the expansion areas, but the expansion areas, to the extent they include segregated SF detached housing, fail to meet the requirement for dispersion of housing types that meet a variety of household sizes and incomes.

We recommend that the Metro Council require that, prior to any UGB expansion, each city list specific actions and tools they have taken or will take (not “consider”) in the proposed expansion area and citywide, in addition to zoning, to make housing more affordable.[20] 

Transit

Metro Desired Outcome 3 envisions: “People have safe and reliable transportation choices that enhance their quality of life.”  Metro’s Regional Transportation Plan (RTP) and the embedded Active Transportation Plan (ATP) require planning that supports decreasing reliance on single-occupancy vehicles and increasing opportunities for transportation choices.  The ATP plans facilities and investments in walking, bicycling, and transit facilities.

While the submissions addressed trails, parks, and bikeways, there was not much discussion about transit readiness.  The proposals should describe the relationship of existing and planned transit service to the expansion area; how the proposed residential patterns and densities will support future transit; what planning has the city done with all relevant transit providers to extend transit service into the proposed expansion area during the build-out period; the  identification and protection of physical requirements to accommodate transit; location of walkable connections between transit and the entire expansion area, etc.  We recommend Metro send back any proposal that does not include at least this degree of future transit planning tied to housing locations and densities.  This task can still be accomplished within the time period for this UGB expansion.

Climate Change

Metro Desired Outcome 4 envisions: “The region is a leader on climate change, on minimizing contributions to global warming.”

The responses to the Metro “Desired Outcome” related to global warming are mostly focused on energy conservation, solar development, building efficiency, etc.  While these are good steps, almost 40 percent of the state’s greenhouse gas (GHG) emissions are generated by cars and small trucks, i.e., driving.  Metro was required by the state to develop and adopt, which it has, its Climate Smart Communities Strategy to reduce per capita greenhouse gas emissions from cars and small trucks by 20 percent by 2035.  Major factors in accomplishing this include strategies to increase transit, bicycling, and walking and reduce vehicle miles traveled by cars.  Increasing density is essential, and ADUs are also important.[21]  Every city and county in the region endorsed the Climate Smart Strategy.  One cannot tell from the proposal what contribution they will make to achieving this mandate, or whether they will actually detract from it, which could happen since single-family, detached housing zones contribute far more to VMT and thus GHG emissions than compact, walkable, transit-density neighborhoods.  The proposals should address how the proposed UGB developments will result in a meaningful decrease in driving by current and future residents and employees.

Equity

Metro Desired Outcome 6 states: “Equity exists relative to the benefits and burdens of growth and change to the region’s communities.”  In addressing the Desired Outcome on sharing the benefits and burdens of growth and change equitably, each proposal should address how the city included communities of color, lower-income people, older residents, young people, and others often left out of the process in the concept plans they submitted, and how they plan to include these communities in future planning for and development of any areas that are included in the UGB.  

As mentioned above, the following aspects of the submissions violate the Equity Desired Outcome: segregated single-family detached housing; lack of compliance with the ADU requirement; lack of prohibiting homeowner association agreements that prohibit or limit housing types, designs, and densities; and any failure to comply with Metro’s housing reporting requirements.

Conclusion

We recommend that the Council direct its staff, including the Metro legal staff, to draft an ordinance requiring that any violation of a current Metro Code (such as the ADU code) be cured prior to any UGB expansion; that any city desiring a UGB expansion adopt, in advance of any expansion, an ordinance stating that it will not honor any homeowner association restrictions on housing; and prohibiting segregated, exclusive SF zoning.  In addition, that any UGB expansion is conditioned on the city adopting relevant zoning codes to address the affordable housing, equity, climate, and transit actions described above.

Sincerely,

Mary Kyle McCurdy, Deputy Director


[1] COO Recommendation, p. 7.

[2] We note that Metro is not obligated to actually expand the UGB.  The population range forecast in the Urban Growth Report also justifies not expanding the UGB for residential capacity.

[3] Related to Centers, Corridors, Station Communities, and Main Streets.

[4] Additional Metro Code requirements supporting a more diverse range of housing options in these expansion areas includes MC 3.07.730(a)–(c) and MC 3.07.740 (regarding affordable housing).

[5] Goal 10 provides, among other things: “To provide for the housing needs of citizens of the state. Buildable lands for residential use shall be inventoried and plans shall encourage the availability of adequate numbers of needed housing units at price ranges and rent levels which are commensurate with the financial capabilities of Oregon households and allow for flexibility of housing location, type and density.”

[6] MC 3.07.1120(c)

[7] For example, Metro Code 3.07.740 requires that local governments report their progress on increasing the supply of affordable housing, with specific data points required, and that Metro prepare a biennial affordable housing inventory.  We are not aware of these reports being prepared on a biennial basis.  As described below, it appears that many, if not most, jurisdictions are out of compliance with MC 3.07.120(g) regarding accessory dwelling units (ADU).

[8]   1. People live, work and play in vibrant communities where their everyday needs are easily accessible.

     2. Current and future residents benefit from the region's sustained economic competitiveness and prosperity.

     3. People have safe and reliable transportation choices that enhance their quality of life.

     4. The region is a leader on climate change, on minimizing contributions to global warming.

     5. Current and future generations enjoy clean air, clean water and healthy ecosystems.

     6. Equity exists relative to the benefits and burdens of growth and change to the region’s communities.

[9] Beaverton proposal, p. 9.

[10] COO recommendation, p. 9.

[11] That these cities seem to be out of compliance with Metro’s ADU code, which has been in place since 1997, does not reflect well on Metro’s ability to enforce its own code or to comply with Goal 10.

[12] COO recommendation, p. 12.

[13] The lack of clear and objective standards for ADUs raises the issue of whether all of King City’s housing development code lacks clear and objective standards, which has been required by ORS 197.307, in some form, since the 1980s.  If so, King City may not be ready for a residential UGB expansion.

[14] COO recommendation, p. 14.

[15] Sightline, March 15, 2013, ADUs & Dont's, http://www.sightline.org/2013/03/15/adus-and-donts/

"At many houses, especially those in dense, in-city districts where the demand for housing is strongest, installing another off-street parking space is expensive if not physically impossible.”  Also, The Ascent of ADUs in Portland 

https://accessorydwellings.org/2017/02/27/the-ascension-of-adus-in-portland/, February 27, 2017

[16] COO recommendation, p. 7.

[17] MC 3.07.710, .740

[18] MC 3.07.730(a), (b).

[19] “[Whether the] housing needs of people in the region, county and city have been considered:

  • Is the city planning for a variety of housing types that can address the needs of diverse household sizes and incomes in the proposed expansion area?”

Additional Metro Code requirements supporting a more diverse range of housing options in these expansion areas includes MC 3.07.730(a)–(c) and MC 3.07.740 (regarding affordable housing).

[20] One place where many of these tools is captured is on DLCD’s Measures to Encourage Affordable and Needed Housing (within existing UGB), https://www.oregon.gov/LCD/docs/Affordable%20and%20Needed%20Housing%20Measures.pdf