[Vision2020] Kai's comments and questions
Art Deco
deco at moscow.com
Tue May 24 11:34:39 PDT 2005
All,
Mike Curley writes:
Kai:
You have raised once again the "motive" issue regarding the complaint
against NSA. The complainants have assiduously avoided that discussion
because (a) it is irrelevant to the legal issue, and (b) it would not be a
one-sided discussion and would circle back around ultimately to not being
relevant to the legal issue.
To those with some patience, the following contains descriptions of two
real-world zoning cases illustrating Mike Curley's point.
When I became the P & Z Coordinator in Boundary County in the early 1980s, a
complaint against an illegal subdivision had already been made.
The county was experiencing a lot of illegal land division with consequent
adverse impacts on residents and the county finances. The case in point was
a particularly egregious violation because of a poor, not-to-code survey,
property border disputes, earth movement problems, and horrid subdivision
road problems including a rickety bridge over Ruby Creek (raise any alarm
bells, anyone?) that connected the subdivision to the county road.
I collected documentary, photographic, and other evidence of the violation.
I met with the two developers and their first attorney. The developers had
two claims: [1] the subdivision laws did not apply to them, and [2] they
were being singled out for enforcement because they belonged to a church
which many considered a cult. Both of the developers were reasonably well
liked county-wide but neither was considered particularly honest.
The zoning laws did apply to them regardless of their political/religious
beliefs. Until that meeting, I had never heard anything about the
developer's religion, nor did I care as far as P & Z enforcement was
concerned. At the end of the meeting the developer's attorney agreed that
they were in violation and needed to go through the process to make the
subdivision legal. The developers then immediately fired that attorney and
subsequently hired another.
The county applied for injunctive relief to stop the sale of land within the
subdivision until its status was legalized. During the court hearing, both
in testimony and in argument, the developers attempted to show that they
were victims of religious persecution/discrimination.
The court would not allow such issues to be raised. The injunction was
granted. With regard to the religious discrimination matter the court said
that the issue in this and similar matters is not the motives of the
complainants, but whether the facts and law support the complaint.
Although the injunction was issued, the matter had a very unsatisfactory
ending. The developers surreptitiously sold the land in a manner that
cleverly forestalled discovery until they had moved to somewhere into the
deep south beyond practical prosecution. A few years later a spring ice jam
wiped out the rickety bridge stranding all the subdivision residents. The
cost to rescue same and rebuild the bridge cost the county about 1/8 of the
entire county road budget for that year. [For the curious: Yes. This was
the subdivision that Randy Weaver and family lived and his unfortunate wife
and baby died in. They were one of the first purchasers, in part because it
was an illegal subdivision. During this process and another one, Randy
Weaver threatened to kill me twice.]
After I had been the P & Z coordinator for about a year, X came into my
office and complained that Y was operating a very noisy, custom large
dimensional cut sawmill without the required conditional use permit (CUP).
It was well known that X hated Y and his wife.
A compliant is a complaint and fairness and equal protection of the law
dictate that all must be investigated. I talked to Y and collected
documentary, photographic, and other evidence of the violation.
The startling facts about the operation included that the fact that the
sounds from the mill could be clearly heard up to 5 miles away when the wind
was right, were sometimes in excess of 130 decibels, and that the mill
frequently operated from about 4:00 AM to 12:00 AM.
Y argued that X was only complaining because X had it in for Y and his wife.
The situation was more complex in other ways. Y and his wife did a lot of
public service and were very well liked. Boundary County's timber
production and the associated economy had been in decline for some time;
small, custom mills like the one at issue offered at least some respite.
The facts were clear, however. The mill was operating in violation of the
zoning ordinance. A CUP was required. At first, Y was quite bull-headed.
He built the mill not knowing a permit was needed. He would not apply for
the permit now. He said the only reason for the complaint was that X was an
asshole and was just trying to stick it to him.
Then came the curious part: I wondered why no other neighbors had
complained. Although only operating now for about to weeks, the mill was
certainly a nuisance. On the first interview, every neighbor I talked to
said they hated the mill, that the noise, dust, and other things were
seriously disrupting their lives. However, they really liked good old Y,
did not like X, and therefore did not want to testify or say anything
"official" against Y.
Then after the mill remained operating while the county commissioners and I
tried to lay the groundwork for a workable solution, the noise finally
started to get to some of the neighbors. A number of neighbors told Y of
their concerns, got no real satisfaction, and finally told me they would
join the complaint of X and begged for dispatch in stopping the noise.
After consulting with P & Z Board and the county commissioners, I told Y
that unless he agreed to immediately seek a CUP and to take mitigating
measures until the process was completed, the county would seek an
injunction to shut the mill down.
Y saw the advantage of what was being offered. He applied for the permit,
cut the operating hours, and took temporary measures to greatly muffle the
sound. The final solution was the granting of the CUP which included
conditions that muffled the sound even further and addressed all the
reasonable concerns of the neighbors. Surprisingly, even X was pleased.
We live in a country allegedly ruled by laws. It is the validity of a P & Z
complaint not the motive(s) for filing it that generally will determine the
final outcome of the complaint. P & Z is a complex legal process to which a
complainant or defendant has recourse to the courts to seek a different
outcome if dissatisfied with the legality of local government outcome. We
live in a country where the Rule of Law allegedly reigns, not the Rule of
Man.
There are two issues that come to the fore with NSA:
[1] Are they in violation of the Moscow Zoning Ordinance?
[2] If so, should they be enjoined from operating at their present
location (a) if the zoning code is to be left as is with respect to
educational institutions in the central business zone or they move, or (b)
until the zoning code is modified to make their current violation legal?
Wayne A. Fox
1009 Karen Lane
PO Box 9421
Moscow, ID 83843
(208) 882-7975
waf at moscow.com
----- Original Message -----
From: "Michael Curley" <curley at turbonet.com>
To: "Kai Eiselein" <editor at lataheagle.com>; <vision2020 at moscow.com>
Sent: Monday, May 23, 2005 2:01 PM
Subject: [Vision2020] Kai's comments and questions
> Kai:
> You have raised once again the "motive" issue regarding the complaint
> against NSA. The complainants have assiduously avoided that
> discussion because (a) it is irrelevant to the legal issue, and (b)
> it would not be a one-sided discussion and would circle back around
> ultimately to not being relevant to the legal issue. And, since many
> people have weighed in on the issue, there may be many "motives,"
> many of which might actually be inconsistent or in conflict with one
> another.
>
> It seems to me that your post lumps motive and the legal issue
> together. I would like to invite you to separate them for a moment
> and see where that gets us.
>
> Assume, for the sake of argument only, that you are right that SOME
> people at least want to attack Doug Wilson and his related
> enterprises as part of an ideological battle. I suggest that someone
> who approaches the issue knowing nothing about the parties involved
> might STILL find that NSA should NOT be downtown. Why? Well, for
> the very reasons that the City Council did, in fact, do exactly what
> you say is against common sense--they made a very clear distinction
> between three types of schools--K-12, college/university, and
> commercial/trade schools, and excluded the first two from downtown.
>
> Why did Council specify that commercial schools were permitted
> downtown and NOT grade schools, jr. high schools, high schools,
> colleges, or universities? Well it could be because the "principal
> purpose of [Downtown] is to provide a location for compatible
> commercial uses. . . for example enterprises dispensing retail
> commodities, and those providing professional and personal services
> to the INDIVIDUAL." (from the "intent" section of the downtown zone;
> emphasis mine ).
>
> Downtown is identified in the comprehensive plan as "one of the
> city's major shopping areas, provide a pleasonat environment for
> shopping and working, provide an opportunity for socializing, and act
> as a focal point for the community."
>
> Colleges and universities tend to grow. They tend to need more and
> more space as they grow. Colleges and universities are not
> commercial enterprises, they do not provide professional and personal
> services to the general public (as we would usually interpret that
> term), they tend to eat up available parking, and they break up the
> pedestrian mall" concept detailed in the Comprehensive Plan for
> downtown.
>
> While elementary and high schools might not tend to expand as a
> college or university might, they still present the same "non-
> retail," "non-personal service," parking, pedestrian traffic
> problems.
>
> Hence, there is good reason to exclude schools (K through college)
> downtown. We don't know why each individual Council member voted as
> s/he did, but the reasons outlined above are certainly consistent
> with other measures they passed in the zoning code and the comp plan.
>
> Commercial schools by their very name are commercial. There is some
> "retail" aspect usually associated with them. That is a significant
> distinction upon which Council might have based its decision to allow
> them downtown. Any member of the public--not just a student--can get
> a massage; can have a haircut or styling.
>
> I would agree with you, should you raise the issue, that ALL possible
> commercial schools might not be compatible downtown. That some might
> be detrimental to the stated intent for the downtown area. I think
> the Code should be modified. I think it should allow commercial
> schools by conditional use permit so that the city can control the
> size and nature of the commercial school--and insure that there IS a
> retail aspect. I do not, however, think that either K-12 or colleges
> or universities should be allowed even by conditional use permit--
> because I agree that downtown should be preserved for retail and
> personal service establishments and no K-college school meets those
> needs.
>
> Finally, I respect YOUR right to disagree about what should be
> allowed downtown. You and others might think an elementary school
> would be a nice addition, or a college or part of the University of
> Idaho. It is a matter for reasoned, rational, and I sincerely hope,
> respectful, public debate. And that is what is required--two public
> hearings--to change the Code or the Comp Plan. And intentions will
> have, should have, nothing to do with the discussion.
>
> Let's move our thinking off downtown for a moment. Someone filed a
> complaint against the Alternative High School being located where it
> on Main Street/Hiwy 95. It seems clear to me it is NOT allowed to be
> there as the code is currently written. So, the ruling should be
> made accordingly and if the AHS wants to stay there, the school
> district needs to ask for a change to the code--and we will all get
> to be part of that debate as well. Whatever the "motives" of the
> people who filed the complaint, they are right about the law, and
> there is an important PUBLIC INTEREST to protect by following the
> law. And the same applies to NSA, regardless of the motives of its
> founders or the motives of the complainants.
>
> Regards,
>
> Mike Curley
>
>
>
>
> On 23 May 2005 at 13:02, Kai Eiselein wrote:
>
>> Joan, I would have expected better of you.
>> You've resorted to name calling now? Gee, when I was on the
>> speech/debate team in high school and college, I would have been
>> granted the win. That aside, let me state I am not cowed by the
>> current fashion of attacking people personally when one doesn't agree
>> with a view. When it happens, it is nothing more than a desperate act
>> of emotion rather than reason. I am veiwing the proceedings of the
>> "NSA problem" from a "common sense" point of view. And common sense
>> says that people are "splitting hairs". The ONLY differences between
>> the other schools and NSA are: 1. Mr. Leons and the massage school are
>> "doing business" as schools. NSA is recognized as a school. 2. Mr.
>> Leons and the massage school are "for profit" enterprises. NSA is not.
>> 3. NSA is a religious school, the others aren't. There was no outcry
>> about NSA moving into the downtown area, the outcry only happened
>> after Wilson's book came out. Then there was a HUGE backlash,
>> including vandalism to a coffee shop owned by a CC member. Since then
>> the over-riding battle cry has been "Get them out!" "Not on the
>> Palouse, not now, not ever!" "They are a cult!" The zoning issue
>> turned out to be NSA's achilles heel and, thus, has been used as a
>> legal means of countering Wilson's views without seeming to be a part
>> of the frenzy. Thinly veiled, but effective. Of course the most
>> obvious defense to that is. "but I'm a (your church here) member". As
>> if a Christian wouldn't attack a Christian. Ummmmm sorry, history
>> doesn't bear that out. I didn't just fall off the turnip truck
>> yesterday. This is an ideological battle, pure and simple. Call it
>> what you want, but if it walks like a duck and talks like a
>> duck.............
>>
>> Kai T. Eiselein
>> Editor
>> Latah Eagle
>> 521 S. Jackson St.
>> Moscow, ID 83843
>> (208) 882-0666 Fax (208) 882-0130
>> editor at lataheagle.com
>>
>>
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>
>
> _____________________________________________________
> List services made available by First Step Internet,
> serving the communities of the Palouse since 1994.
> http://www.fsr.net
> mailto:Vision2020 at moscow.com
> ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯
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