[Vision2020] City Council's Material Change

[Phil Nisbet]

Scott

Though this has absolutely nothing to do with me and I have no particular 
desire to get into the middle of this slug fest, I would point out that the 
Planning Act and other Idaho law relating to zoning in the paragraph you are 
referencing is referring to the P&Z and not the City Council.  The governing 
body that they refer to in the clip you use is the City Council.  As the 
Governing Body, they have the right with just one hearing to enact 
legislation (In the case of a city that is Ordinances) and there would be no 
liability.  The P&Z may either hold one hearing or send the ordinances up to 
a hearing at Council level or they may hold two hearings and then the 
ordinance may skip the hearing stage at the council level.  The council has 
no requirement to have ever had this ordinance in its P&Z Commission.

As I understand it, the previous council had a hearing and passed an 
ordinance.  So, the City was really required to hold a hearing prior to 
issuance of its moratorium.  The only way around that would have been for 
the council to have passed a finding of a state of emergency that claimed 
that the health and safety of the citizens of the city were at risk, in 
which case they could have passed the moratorium immediately as an emergency 
measure.

That is why Nancy had second thoughts, without a hearing passing a 
moratorium would have placed the City in a position of liability.

And as everybody jumps up and down thinking that this only effects NSA, 
people might want to remember that there are two commercial schools in the 
CBD that pay taxes ;that would be equally effected.  Let’s not see the 
innocent slaughtered in the crossfire of this particular dispute please.

Phil Nisbet



>From: Scott Bauer <ds_bauer at yahoo.com>
>To: vision2020 at moscow.com
>CC: aaronament at moscow.com, nchaney at ci.moscow.id.us, 
>blambert at ci.moscow.id.us,        johnd at moscow.com, jweber at ci.moscow.id.us, 
>lpall at moscow.com,        bstout at ci.moscow.id.us
>Subject: [Vision2020] City Council's Material Change
>Date: Wed, 4 Jan 2006 18:14:34 -0800 (PST)
>
>   Visioniaries,
>
>   I would like to help A. Lurker (whose style reminds me of A Kirker) and 
>others understand the primary issue raised by Councilman Ament during last 
>night’s meeting.
>
>   When Mr. Ament proposed the moratorium, he expressed concerns that 
>“material changes” to Ordinance 2005-33 could possibly expose the City to 
>liability. According to Idaho Code § 67-6511(b), the City must amend its 
>zoning ordinance “pursuant to the notice and hearing procedures provided in 
>section 67-6509, Idaho Code.”
>   http://www3.state.id.us/cgi-bin/newidst?sctid=670650011.K
>
>   Idaho Code § 67-6509 states, “Following the commission hearing, if the 
>commission recommends a material change to the proposed amendment to the 
>plan which was considered at the hearing, it shall give notice of its 
>proposed recommendation and conduct another public hearing concerning the 
>matter if the governing board will not conduct a subsequent public hearing 
>concerning the proposed amendment.”
>   http://www3.state.id.us/cgi-bin/newidst?sctid=670650009.K
>
>   Please note the phrase “material change” and the obligation it imposes 
>on City Council, because this raises the question, “Did City Council 
>materially change Planning & Zoning’s proposed amendment when they gutted 
>the conditional-use parking requirements from the Central Business 
>District?” Of course, the answer is obvious: “Yes, City Council made 
>material changes to P&Z’s proposed amendment” (see e.g., Price v. Payette 
>County, 131 Idaho 426, 958 P.2d 583). This, then, raises another question, 
>“Why didn’t City Council remand the proposed amendment to P&Z for another 
>hearing, as required by Idaho Code?” and I suspect the answer resembles a 
>slap in the face.
>
>   Nevertheless, Council’s failure to remand the proposed amendment exposed 
>the City to potential lawsuits for violating the Local Land Use Planning 
>Act, and council members Dickinson and Stout agreed to protect Moscow from 
>unnecessary litigation. Mayor Chaney affirmed, breaking the tie. To be 
>sure, the proposed moratorium would hurt no one and, in the end, it would 
>protect everyone.
>
>   Finally, in defense of Council members Stout, Ament, and Dickinson, as 
>well as Mayor Chaney, I would remind opponents of the moratorium that last 
>November was a referendum on zoning, and these elected officials voted in 
>accordance with their mandate, which included protecting the downtown core 
>for intensive commercial activities. Therefore, if you feel slapped in the 
>face, then I respectfully suggest that you wear padded earplugs.
>
>   Scott
>
>
>
>---------------------------------
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