[Vision2020] Alturas Daycare Facility

[Evan or Nancy Holmes]

Dear readers;


This posting concerns the decision by the Zoning Board of Adjustment
rendered Thursday evening (May 29)in an appeal of the Moscowıs zoning
commissioners denial of a request to allow a daycare facility to open and
operate at Alturas Technology Park.

This posting will describe the appeal process as I understand it and explain
the reasoning behind my vote. I am not claiming to represent the entire
Board of Adjustment with these explanations and/or reasoning.

The Zoning Board of Adjustment convenes in order to analyze and decide
matters that are contentious. For every request for a Variance (which is a
request to allow something to be built that is usually disallowed),
application for a Conditional Use Permit (which is a request to allow an
activity to occur in a restricted way in a place or in a manner where it
normally wouldnıt be allowed at all) or Appeal of a zoning or building code
decision, there are usually good reasons to make the decision either way. It
is the job of the ZBA to walk the tightrope. The Board members must gather
evidence, review pertinent laws, codes and regulations and hear testimony
before deciding towards which side to jump. The ZBA is charged to act in a
judicial way, which includes. 1) gathering information in a formal, public
and replicable manner, 2) deliberating and deciding in open sessions, and 3)
rendering decisions according to certain preset criteria.

After reviewing the decision to not allow the day care business to operate
at Alturas, the Board of Adjustment could either, 1) support the decision of
the zoning commissioner, 2) reverse the decision, or 3) remand the decision
to zoning commissioner for reconsideration in light of new information. It
is interesting to note that there are not preset criteria that the ZBA must
use when deciding an appeal of this nature.

Last night, after hearing two hours of testimony, the ZBA voted unanimously
to override the decision of the zoning commissioner, in effect, allowing the
establishment of a day care facility at Alturas Technology Park.

This does not mean the ZBA is critical of the original decision. I think we
are also unanimous in our belief that the zoning commissioner and thus, the
City of Moscow, did not make the original determination in error. So why did
we reverse the decision?

First, it is my belief that the nature of the appeal process required in
this instance allows for a broader interpretation of the pertinent
regulations and for gathering information of a type and quantity not
available to the zoning commissioner in the original application procedure.
Otherwise a type one administrative appeal would not be prescribed. Instead
the appeal would be based upon examination of original documents and
testimony would be limited to clarifications by the original involved
parties or expert witnesses. In short, the inclusion of the public hearing
process in this type of appeal has, in and of itself, some broad
implications.

Second, I believe the ZBA is free to use a ³reasonable man² (or ³reasonable
citizen², if you prefer) interpretation of ordinances, rules, codes,
definitions, etc. whereas the zoning commissioner and the Community
Development Office 1) must adhere to the letter of the law, 2) must
constrain their interpretations to avoid any semblance of favoritism derived
from real or imagined closed-door deliberations and 3) are less free to
include ³intent² when researching the derivation of the ordinances, rules,
definitions, etc. in question.

Third, I believe a significant aspect of this whole matter is rightfully
subject to a rather simplistic ³either-or² analysis of some rules and
definitions. Specifically, I refer to the definition of ³accessory use². The
zoning code makes it clear that in order for a day care to operate at
Alturas it must be an accessory use. It is easy to imagine scenarios where a
proposed day care would be considered a principal use and thus not allowed.
It is also easy to imagine the scenario where a proposed day care would
obviously be subordinate to another business and thus permitted. The
proposal the zoning commissioner rejected obviously was not as clear cut as
either of these two scenarios but the rejection was based on the feeling
that the day care would be a principal use and that the applicant didnıt
offer substantial evidence to the contrary.

There was a lot of testimony given to the ZBA that implied that a reasonable
citizen would qualify almost any daycare operation in a growing RTO
(research, technology and office) zone as an accessory use. An argument can
be made that the zoning code itself seems to imply that a day care facility
contained within an RTO zone is an accessory use by lumping it together with
parkinglots, storage areas and cafeterias. Also, difficulties arise because
there is some mixing of the definitions for accessory uses and accessory
structures. Under these considerations the given proposal doesnıt seem to
fall into the principal use category and therefore must be, according to the
simplistic either/or analysis, an accessory use.

At this point in the analysis, Iım still on the tightrope, unwilling to jump
either way. The ZBA, however, received a considerable amount of testimony
that allowed me to form conclusions about the ³intent² behind the day care
facility provision in the genesis of the RTO zoning ordinance and in the
subsequent development of Alturas Technology Park. The specific day care
facility being proposed seems to pretty well match the vision of some of the
early planners of the RTO zone and to very closely meet the needs and
expectations of at least one of the original investors/tenants. Knowing
that, and because the language of the zoning code leaves many questions
(such as , why allow theoretical day care facilities within an RTO zone in
the first place and then define, code and regulate them into impossibility?)
I felt that the zoning commissionerıs ruling should be overturned.

City officials warned the ZBA of the ³slippery slope² the community
development department would be on if we reversed this ruling. Itıs possible
to imagine more day care facilities seeking places in the RTO zone if they
were to be considered ³accessory² without a specific other entity to be
subordinate to. I think the members of the ZBA understand this precarious
position but based on the specific proposal received and the types and
amount of evidence reviewed we had to reach this conclusion. There may be
many citizens, even a majority, who donıt think an RTO district should
include these provisions or that Alturas Technology Park was meant to be
like this. But it is the opinion of the ZBA, as demonstrated by our decision
on this matter, that it does and it is. Otherwise it becomes a legislative
matter. The questions and ambiguities that need to be resolved in order to
eliminate this slippery slope will be addressed in the very near future if
the zoning commissioner decides to appeal the ZBA decision. If not, the P&Z
Commission and City Council should probably  work on them at the soonest
opportunity.

Thank you for allowing me to make a short story long and for your thoughtful
attention.

                            Sincerely,

                            Evan Holmes