[Vision2020] Certificates of Occupancy are not Zoning Certificates

[Scott Bauer]

Visionaries,

I would like to correct some of the misinformation that's been floating
around the community for awhile.

First, the Zoning Administrator never issued a Zoning Certificate to NSA
pursuant to Moscow City Code 4-11-2(A)(1) (http://zonemoscow.com/code/11-2.html).
NSA does possess a Certificate of Occupancy. But despite their
assertions, this is not a Zoning Certificate.

Nevertheless, if for the sake of argument we grant that a Certificate of
Occupancy, under some conditions, could be characterized as a Zoning
Certificate, then please note that the Zoning Administrator did not
completely fill out NSA's certificate. He left the "Zoning
Classification" blank, and he did not even sign it.
(http://zonemoscow.com/city/coo.html). It is difficult to conceive that
NSA would rely on the supposition that a Certificate of Occupancy doubles
as a Zoning Certificate when the certificate is improperly signed,
incomplete, omits the zoning district, and under the International
Building Code is voidable on discovery of a zoning violation. (http://zonemoscow.com/city/ibc.html)

Second, the City does not issue "only one" permitting document
authorizing an entity to legally operate within the City. The City issues
a series of permitting documents, which together constitute permission
for an entity to operate, e.g., building permits, certificate of
occupancy, and a zoning certificate. Apart from obtaining all of these
requisite certificates, an entity does not have the City's complete
permission to operate in a specific building.

Moreover, City officials (elected or otherwise) do not have the authority
to waive the permitting and certification requirements of Moscow City
Code. And to the extent that an official, under color of law, attempts to
waive a legal restriction, his action is ultra vires and not binding.
Under Idaho State law, the developer bears the responsibility of knowing
the City's development regulations, the developer must ensure it has the
required permits. (See County of Ada vs. Walter, 533 P.2d 1199)

Furthermore, before NSA moved downtown, but after its second zoning
violation (the Verizon building is NSA's third violation), City officials
notified NSA that the City is not liable for NSA's zoning compliance (http://zonemoscow.com/code/11-3c.html).
City officials did this in person during a meeting and, according to
public records, they also handed hard copies of the Zoning Code to NSA
representatives (http://zonemoscow.com/past/notliable.html). These
communications make clear that NSA is culpable for its own zoning
violation, not the City. NSA representatives have no one to blame but
themselves.

Finally, in my experience as a land-use prosecutor, I have never seen a
case where an entity had two prior documented zoning violations on its
record, and then upon the third violation demanded legislative relief on
the basis that they were being singled out. Quite frankly, I marvel at
NSA's continuing demand that the City accommodate it by amending the
Zoning Code. To be sure, NSA representatives should be thankful for any
legislative relief, because I suspect that if the offender had been Joe
Six-pack, this controversy would have ended one day after we filed our
zoning complaint in January.

Thanks,

Scott Bauer

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