[Vision2020] Alleged Comp Plan Amendment, Ensuing Rezone

[Art Deco]

To the curious and those, if any, Moscow Citizens who believe in the Rule of Law:


It appears from City of Moscow Meeting minutes posted earlier, which are far from clear, there may be a small problem with the so-called amendment to the comprehensive plan.

Cited below is the Conflict of Interest section of the state statutes on Planning and Zoning.  It has been alleged on this forum that JoAnn Mack's son is the owner of the property at issue.

If so, then clearly:

1.    Mack should disclosed such a conflict,
2.    Mack was prohibited by law from voting on the issue, hence it would not have passed, and
3.    Mack has committed a misdemeanor.

Appeals on Planning and Zoning quasi-judicial matters are limited to 28 days after the action (see code below).  However, amendment of the plan is a legislative, not a quasi-judicial matter.  Hence, it is possible that the amendment could be challenged and be declared void ab initio.  If so, then the rezone requested would not be legal either.

Maybe, if anyone is interested a competent attorney could be retained to help pursue this matter.  I have noticed that Mike Curley has had some success in this area with the City of Moscow.  

Perhaps if a misdemeanor by a Good Old/Boy has occurred, the city might be persuaded to pursue that also -- if for no other reason that to attempt to shed part of its corrupt image when it comes to development.

Of course, I am but a legal layman and my analysis may be totally wrong, but it may be worth a tiny, tiny look by someone competent.

Wayne A. Fox
1009 Karen Lane
PO Box 9421
Moscow, ID  83843

(208) 882-7975
waf at moscow.com





67-6506.  CONFLICT OF INTEREST PROHIBITED. A governing board creating a
planning, zoning, or planning and zoning commission, or joint commission shall
provide that the area and interests within its jurisdiction are broadly
represented on the commission. A member or employee of a governing board,
commission, or joint commission shall not participate in any proceeding or
action when the member or employee or his employer, business partner, business
associate, or any person related to him by affinity or consanguinity within the second degree has an economic interest in the procedure or action. Any
actual or potential interest in any proceeding shall be disclosed at or before
any meeting at which the action is being heard or considered. For purposes of
this section the term "participation" means engaging in activities which
constitute deliberations pursuant to the open meeting act. No member of a
governing board or a planning and zoning commission with a conflict of
interest shall participate in any aspect of the decision-making process
concerning a matter involving the conflict of interest. A member with a
conflict of interest shall not be prohibited from testifying at, or presenting
evidence to, a public hearing or similar public process after acknowledging
nonparticipation in the matter due to a conflict of interest. A knowing
violation of this section shall be a misdemeanor.    67-6521.  ACTIONS BY AFFECTED PERSONS.
    (1)  (a) As used herein, an affected person shall mean one having an
    interest in real property which may be adversely affected by the issuance
    or denial of a permit authorizing the development.
    (b)  Any affected person may at any time prior to final action on a permit
    required or authorized under this chapter, if no hearing has been held on
    the application, petition the commission or governing board in writing to
    hold a hearing pursuant to section 67-6512, Idaho Code; provided, however,
    that if twenty (20) affected persons petition for a hearing, the hearing
    shall be held.
    (c)  After a hearing, the commission or governing board may:
         (i)  Grant or deny a permit; or
         (ii) Delay such a decision for a definite period of time for further
         study or hearing. Each commission or governing board shall establish
         by rule and regulation a time period within which a recommendation or
         decision must be made.
    (d)  An affected person aggrieved by a decision may within twenty-eight
    (28) days after all remedies have been exhausted under local ordinances
    seek judicial review as provided by chapter 52, title 67, Idaho Code.
    (2) (a)  Authority to exercise the regulatory power of zoning in land use
    planning shall not simultaneously displace coexisting eminent domain
    authority granted under section 14, article I, of the constitution of the
    state of Idaho and chapter 7, title 7, Idaho Code.
    (b)  An affected person claiming "just compensation" for a perceived
    "taking," the basis of the claim being that a specific zoning action or
    permitting action restricting private property development is actually a
    regulatory action by local government deemed "necessary to complete the
    development of the material resources of the state," or necessary for
    other public uses, may seek a judicial determination of whether the claim
    comes within defined provisions of section 14, article I, of the
    constitution of the state of Idaho relating to eminent domain. Under these
    circumstances, the affected person is exempt from the provisions of
    subsection (1) of this section and may seek judicial review through an
    inverse condemnation action specifying neglect by local government to
    provide "just compensation" under the provisions of section 14, article I,
    of the constitution of the state of Idaho and chapter 7, title 7, Idaho
    Code.  
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