[Vision2020] City Council's Material Change

[Phil Nisbet]

Scott

I do not want to end up up to my hubs in a fight that has little to do with 
me, but you are not correct.  I have worked in County Planning and am very 
aware of what is required under the Local Planning Act of 1975, even have a 
copy of the Statute Book personally that I refer to fairly frequently.

Yes there is one route to pass an ordinance on Planning or Zoning that 
traces through the P&Z, but it is not the only route.  If there wasonly one 
route, than the Latah County Emergency Ordinance for the GWPZ was passed in 
error, since it was never sent to County Planning nor did it have public 
hearings associated.  I know that not to be the case not only from my own 
readings of the Statutes but from fairly good attorneys who specialize in 
Land Use law.

The City Council has every right to take up matters out side of the process 
of P&Z if it so desires and they are not restricted from doing so.  If they 
were, than Aaron's proposal for a Moratorium was out of line because it was 
not submitted to P&Z, though it is obviously a land use matter.  You are in 
essence suggesting that Aaron's moratorium was A OK even though it is a land 
use ordinance related alteration, yet the previous council’s actions were 
not.  You can not get here from there logically, since if the previous 
council’s actions were not legal, than Aaron's proposal was not either.

The truth is that Aaron's proposal only lacked a hearing to be valid and 
could still have been passed if he could make a case for emergency that 
could pass challenge.  The previous council’s actions were equally valid, 
since they held the single required hearing and did not invoke emergency.

The process you outline is valid for submittals requesting changes sent from 
interested parties not part of the council who are seeking changes to the 
Code.  That would include the P&Z Commission or any of the parties seeking 
to either ban or allow educational facilities in downtown.  The elected 
officials can bypass that process at their discretion if they follow allowed 
procedures.

Phil Nisbet


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: RE: [Vision2020] City Council's Material Change
>Date: Thu, 5 Jan 2006 07:20:40 -0800 (PST)
>
>   Phil,
>
>   Idaho’s land-use legislation is complex at times; more than once during 
>this process we scratched our heads, saying, “Huh?” So I will take it from 
>the top and hopefully nothing will slip through the cracks.
>
>   Ordinance No. 2005-33 is a zoning ordinance adopted by the City of 
>Moscow pursuant to the Local Land Use Planning Act (Title 67, Chapter 65 of 
>the Idaho Code) and Moscow City Code. Idaho Code § 67-6511 provides for 
>zoning ordinances, and I.C. § 67-6511(a) states, “Requests for an amendment 
>to the zoning ordinance shall be submitted to the zoning or planning and 
>zoning commission which shall evaluate the request to determine the extent 
>and nature of the amendment requested.”
>
>   I.C. § 67-6511(b) shifts from P&Z to City Council (“the governing 
>board”), stating, “After considering the comprehensive plan and other 
>evidence gathered through the public hearing process, the zoning or 
>planning and zoning commission may recommend and the governing board may 
>adopt or reject an ordinance amendment pursuant to the notice and hearing 
>procedures provided in section 67-6509, Idaho Code.”
>
>   Thus far we see that Council cannot enact land-use legislation apart 
>from P&Z and that I.C. § 67-6509 governs the legislation-hearing process.
>
>   Now, please note the title of Moscow City Code 4-6-10: “Procedures for 
>Legislative Hearings.” It refers to the hearing process for land-use 
>legislation. Note that MCC 4-6-10(A)(1) states, “Legislative hearings are 
>required when changes are proposed to the land use regulations of the City 
>which are subject to the requirements of Title 67, Chapter 65 of the Idaho 
>Code.” Again, please note that MCC 4-6-10(A)(2) states, “Legislative 
>hearings are required in tandem.” The remainder of the section explains the 
>hearing process for both P&Z and Council. And MCC 4-6-10(E)(1) states, 
>“Procedures for the second hearing, conducted this time before the Council, 
>shall be the same as for the initial hearing before the Planning and Zoning 
>Commission.”
>
>   Phil, this is mandatory language. It is not negotiable. Idaho Code and 
>Moscow City Code agree that there must be two hearings: one at P&Z, the 
>other at Council, before the City adopts land-use legislation.
>
>   Here is the application: In July 2005, the Moscow City Council charged 
>P&Z with considering an amendment to the Zoning Code relative to schools in 
>commercial districts. P&Z forwarded their recommendation to City Council in 
>October. Council instructed P&Z to strip the parking requirements and other 
>conditions from their recommendation. The chair of P&Z replied in a memo to 
>the Mayor, stating, “The Commission feels very strongly that parking in the 
>Central Business District MUST be addressed” (October 10, emphasis 
>original).
>
>   Then P&Z significantly diluted their original recommendation and drafted 
>a proposed amendment to the Zoning Code, which they forwarded to City 
>Council pursuant to the aforementioned statutes. City Council held a public 
>hearing on the proposed amendment on December 5, 2005, whereat they 
>materially changed, or substantially modified, P&Z’s recommendation. In 
>fact, Council excised the most critical element contemplated by P&Z: 
>parking conditions for the CBD.
>
>   We return now to the subject of my original post. Councilman Ament 
>proposed a moratorium on CUPs for educational institutions in the CBD for a 
>number of reasons, including City Council’s failure to remand the 
>recommendation to P&Z pursuant to I.C. 67-6509(b), after they made a 
>“material change to the proposed amendment.” This procedural failure 
>exposes the ordinance to a declaratory judgment and years of appeals 
>(judging from the affected party’s past performance). Further, Councilman 
>Ament offered to withdraw this portion of his argument, if the City 
>Attorney assured him that the City would prevail if challenged on this 
>point. The City Attorney did not reply. However, if Council had passed the 
>moratorium, they could have simultaneously repealed the illegitimate 
>ordinance and drafted a cleaner one; thus sparing the City from unnecessary 
>litigation.
>
>   Finally, I find it ironic that on Tuesday night the City Supervisor and 
>the City Attorney waxed meticulously scrupulous relative to the procedural 
>requirements of a moratorium, but less than a month ago these same two 
>attorneys ignored the procedures required by a “material change to the 
>proposed amendment.” Given this, I hope that Mayor Chaney noticed their 
>refusal to offer legal assistance when the majority of Council needed it. 
>They sat there stonefaced when they could have easily converted Councilman 
>Ament’s statement into a finding of fact.
>
>   Thanks for your patience; I hope this helps,
>
>   Scott
>
>
>
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