[Vision2020] Zoning Code and NSA (archives)

[James Nelson]

Visionaries,

Apologies for the double post. This one is for the archives.

I’ve been following the threads concerning the NSA controversy and think that the following outline might help clarify the issues at hand.

ISSUE
Do the policies and regulations controlling development in the Central Business Zone (CBZ) allow for higher educational uses/activities?

BACKGROUND FACTS
The primary activities conducted in the New Saint Andrews College (NSA) building are undeniably of a higher educational type.

POLICIES & REGULATIONS
Comprehensive Plan policies relating to the Central Business Zoning District:

According to Idaho’s Local Land Use Planning Act, “each governing board shall establish zoning districts and the zoning districts shall be in accordance with the policies set forth in the adopted comprehensive plan.” (Idaho Code § 67-65-11.)

The following Comprehensive Plan policies, quoted from Section 4-1 to 4-7 of the Moscow Comprehensive Plan (MCP), control the list of permitted uses in the CBZ:

"Downtown includes a wide variety of businesses within a relatively small area. The area is a healthy mixture of office, retail, and service businesses. This encourages interaction between the different public and private enterprises downtown. . .

"Avoid uses which make it difficult for pedestrians to walk from one establishment to another. . .

"If an effort is not made to provide additional land for commercial growth in the central business district, new businesses will be forced to locate in motor business areas, even though these businesses may be better suited to the central business district and pedestrian shopping. . .

"The addition of Friendship Square has been important. Not only is it visually attractive, it also gives the downtown area a focal point. An image of unity is growing within the central business district, which helps make “Downtown Moscow” a concept in people’s minds, rather than only a vague location. Goal maintains a viable central business district that serves as one of the city’s major shopping areas, provide a pleasant environment for shopping and working, provide an opportunity for socializing, and act as a focal point for the community. . .

"Maintain the central business district as a principal retail shopping area in Moscow. . .

"Maintain the concentrated nature of the central business district in order to facilitate and encourage pedestrian movement within it. . .

"Provide adequate parking in the central business district for shoppers and employees. . .

"Create cultural interest in the central business district. . .

"The majority of shoppers to a central business district come here to shop in more than one store. . ."

Moscow City Code Designation of Purposes of the Central Business Zoning District.

Moscow City Code (MCC) § 4-3-5(A), states that the intent of the CB zoning district is as follows:

"The principal purpose of the CB Zoning District is to provide a location for groups of compatible commercial uses having the common characteristic of not involving more than incidental and minimal assembly, fabrication or storage of commodities; for example, enterprises dispensing retail commodities, and those providing professional and personal services to the individual. The CB Zoning District is the most intensive commercial Zoning District. To promote pedestrian use, unbroken, street-level, commercial frontage is encouraged in this Zoning District."

Not only does NSA not comply with either the above cited policies or the intent of the CB district, it is outright prohibited in the CBZ (see below).

Specific regulatory controls in the CBZ:
The Moscow City Zoning Code is an exclusive ordinance. Therefore the general rule is that if a use or activity is not explicitly permitted it is prohibited. MCC § 4-11-5 (A) states:

"This Zoning Code is an exclusive zoning ordinance wherein the stated uses are the only uses which are permitted in each zoning district. Those uses not listed as permitted or conditionally permitted are not authorized."

According to MCC § 4-3-5, the lists of permitted principal uses in the CBZ are as follows:

"1. Retail sales enterprises, excluding firms selling bulky items, such as building materials, mobile homes, trailers, boats and heavy equipment.

"2. Professional, financial, business and medical offices, and any enterprise rendering professional or personal services.

"3. Repair shops for commodities, such as household appliances, bicycles, and shoes.

"4. Eating and drinking establishments catering primarily to on-premise consumers; entertainment, dancing and recreation establishments, including restaurants, bars, theaters, video arcades, dance halls and physical fitness centers.

"5. Printing and publishing houses, including newspaper publishing.

"6. Lodges, private clubs, and fraternal societies.

"7. Commercial schools, churches, synagogues, mosques, governmental offices, libraries, museums, art galleries, police and fire stations, and similar public or private institutions.

"8. Residential uses, provided that dwellings located on the ground floor are located behind commercial uses in a manner that they will not interrupt commercial frontage.

"9. Public utility installations relating directly to local distribution of services, including switching and transmission stations, but not including warehouses and service yards.

"10. Publicly and privately owned and operated off-street parking facilities if open to the public; however, any such area shall not be used as a sales or storage area for mobile homes, trailers, boats or heavy-duty equipment.

"11. Drive-up windows associated with financial institutions.

ARGUMENT
The principal and ancillary activities/uses in the NSA building do not fall within the definitions of any of the principally or ancillary permitted activities/uses in the CBZ. NSA activities are most similar to the activities of an “Educational Institution” as defined by MCC § 4-11-9(47). MCC gives the following definition of “Educational Institution”:

"A college or university supported by public or private funds, tuitions, contributions or endowments, giving advanced academic instructions as approved by the State Board of Education or by a recognized accrediting agency, excluding preschool, elementary and junior or senior high schools, and trade and commercial schools; including fraternity and sorority houses."

Educational institutions are not currently permitted in the CBZ; therefore the educational institutional activities/uses in the NSA building are prohibited under MCC § 4-11-5(A) MCC.

PRAGMATICS
The CBZ is relatively small and confined (see City Zoning Map). New educational institutions can start small but can grow in increments to encompass large tracts of land. For example, NSA’s student body has consistently doubled every three to four years in the last twelve years. If the Moscow City Council is determined to allow Moscow’s central and exclusive outdoor mall to be opened up to incompatible uses such as college campuses, they should first amend the City’s Comprehensive Plan after extensive public hearings and the submission of cultural/retail/traffic (foot, auto, parking)/tax revenue impact analysis.

CONCLUSION
Until such time as NSA comes into compliance with the Zoning Ordinance (either through variance, conditional use permit, special use permit, etc. . .), their activities are prohibited and must be discontinued immediately. In other words, it’s hammer time.

Cordially,

James Nelson
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