[Vision2020] Is a public vote allowable on WM for example

[Michael Curley]

Ron:
You are, of course, right that a zoning decision cannot be put to a 
vote of the public.  The matter is administrative IF an entity (I'll 
call them BB, Inc. for big box) proposes to build at a location that 
is within the Moscow city limits AND in a zone where the entity is 
allowed as a matter of right by the zoning code.  The administrator 
is charged with seeing that BB complies with all portions of Moscow 
City Code applicable to the situation--building codes, setbacks, 
storm water runoff, signage, lighting, buffer (planting strips, etc). 
 In any other situation, the matter is quasi-judicial--BB must ask 
for some type of permission or change to the code(s).  If BB proposes 
to locate where their type of operation is what is known as a 
"conditional use," then BB can locate there only with permission from 
the Board of Adjustment (whose decision can be appealed to City 
Council).  If the property is outside the city limits, it needs to be 
annexed and then rezoned.  If inside the city limits, but BB's 
operation is not currently permitted by right or by conditional use 
permit, then BB can ask for a rezone--which will be heard first by 
Planning and Zoning Commission for its recommendation to City 
Council, which will have another public hearing and render a final 
decision.

One piece not often mentioned in discussions on 2020 (or elsewhere 
when I have heard them for that matter) is that a governmental entity 
cannot discriminate against BB.  It must treat BB and BB1 and BB2 all 
the same.  Thus, outside the imaginary BB world:  the city cannot 
allow Lowe's to do what it won't allow Home Depot to do--in the same 
location at least.  Certainly the city can deny HD a rezone on the 
east side of town (if there is cause to do so) and allow Lowe's a 
similar rezone (and sized store) on the west side (again, if there is 
good reason to do so).  Thus, the city can limit the size of new 
retail establishments to, for example, 150,000 sq. ft. (or less, or 
more)  But the limit would apply to Tri-State and Moscow Building 
Supply if they wanted to expand above that limit.  If they (or any 
other entity) is already above the limit, they would be a (legal) non-
conforming use (some refer to this as being "grandfathered in," which 
is not exactly accurate, but...).  

The City could hold an advisory election to determine if a majority 
of Moscow voters would want the size (or location, etc) limits 
Council is or wants to consider.  As long as it is a legislative 
matter--concerning the passage of a code section applicable to all 
entities, there would be no problem with the vote (in my opinion).  
It could not be held, however, if it was related to a specific 
application.  For example, if Costco wanted to rezone a parcel, an 
advisory vote/election would violate Costco's due process rights (and 
probably others as well).  For better or worse, the public hearing 
process is where citizens could sound off about their interests and 
opinions about the pending application.

That said, perhaps one can see why "planning" is such an important 
function.  Once faced with a specific application, the council's 
(and, thus, the citizens') options become substantially more limited.

I apologize for the length of this post.  
Mike Curley





From:           	"Ron Force" <rforce at moscow.com>
To:             	<vision2020 at moscow.com>
Subject:        	RE: [Vision2020] Walmart
Date sent:      	Wed, 11 Jan 2006 14:44:36 -0800

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I don't believe there's any way under Idaho law for a zoning decision
to be put to a vote. Doesn't it fall under an administrative 
decision,
like the 10 Commandments decision in Boise?

**********************************************
Ron Force          Moscow ID USA
rforce at moscow.com
**********************************************

Phil Roderick says:
"I think Walmart proposal should be put to the vote of the people . .
."

I don't think you'll get what you want, or what you think you'd get,
if you put it to a vote.  Especially if you go countywide.

I'm not saying it's right or wrong, but just what it is.

DC


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