SECTION 13
LAND USE
MOSCOW AREA OF CITY IMPACT
Under Idaho law, cities and counties can enter into "area of city impact
agreements" to jointly administer planning and development activities in the
area immediately outside the city limits. The city of Moscow and Latah
County reached such an agreement in 1993, and designated the area indicated
in the accompanying map as Moscow's area of impact. The area was drawn to
include those areas around Moscow with potential for urban-type development
in the next 20 years. Because land in the area of city impact is in the
proximity of the City of Moscow, it is an area in which growth and
development may be expected to occur. Thus the area of city impact is a
transition area, including some areas that will be annexed into the growing
city, other areas where scattered residential development will intensify,
and still other areas where agricultural uses will continue for some time.
Procedurally, changes to the comprehensive plan map land use designations
for the area of city impact (which control what uses are allowed in various
areas) must be jointly approved by the Moscow City Council and the Latah
County Commission. The City of Moscow zoning ordinance applies in the
impact area and is administered by the city.
City of Moscow zone designations can be applied within the area of impact
if they are consistent with the land use designations shown on the
comprehensive plan map. Since the usual agricultural activities are
uses-of-right within the Agriculture/Forestry zone, provisions outlined in
this section have little practical effect for most existing farm uses.
AREA OF CITY IMPACT GOALS
1. Ensure the orderly development of land near the city of Moscow.
2. Provide for a single comprehensive plan and one set of development
regulations that apply to land in the area of city impact.
3. Simplify planning and development by having a single jurisdiction
(the city) be responsible for administering the development and approval
process in the area of city impact.
4. Allow for the expansion of the city boundaries by assuring that
development adjacent to the city is compatible with city standards.
5. Provide for the cost-effective and well planned delivery of city
services (water, sewer, streets, etc.) within these expanding boundaries.
6. Preserve and enhance the function of state and federal highways and
county roads in the area of city impact as safe and efficient transportation
corridors for various modes of transportation.
7. Protect the interim viability of agriculture in areas more distant
from the city and not yet ready for urban development by minimizing conflict
with scattered development.
8. Minimize potential water, sewer, and access problems common to
scattered rural residential developments, and assure that the layout of any
such developments will be compatible with urban standards when eventually
annexed.
9. Identify, protect, and where possible acquire lands in the area of
city impact that will in the future be appropriate for parkland, including
possible linear parks along the railroad corridors and Paradise Creek.
AREA OF CITY IMPACT IMPLEMENTATION POLICIES
1. As urban-type development occurs, it should be encouraged to locate
contiguous with present city limits. Such contiguous development should be
annexed so that city services (water, sewer, streets) can be provided.
2. Moscow city sewer and water services will not be extended beyond the
city limits, except in cases where the failure of existing systems have
caused a public health and safety hazard, and where users so served agree to
fully bear all costs of such service and not to oppose future annexation.
3. Development of multi-user sewer systems in the area of city impact
is discouraged. Where individual private systems are proposed in new
subdivisions, assure that functional sewage systems can be developed for all
parcels without undue off-site impact.
4. Require subdividers to show that any residential development which
occurs is compatible with the street layout and service access requirements
of later higher density urban development, and is amenable to later
re-development using city size lots.
5. Discourage both residential and commercial strip development with
multiple accesses off county roads which are, or may become, arterial streets.
6. Require that roads and intersections be designed to restrict and
control vehicular access along state and federal highways in the area of
city impact to preserve the primary transportation of these highway
corridors. Buffer requirements should be considered in industrial and
commercial areas to preserve visual amenities in these major entrances to
the city.
7. Some rural non-retail businesses beyond those ordinarily permitted
in the Agriculture/Forestry zone are allowed as conditional uses in that zone.
8. Within the area of city impact, parkland dedication (or fee in lieu
of dedication) may be deferred until the parcel is rezoned to a higher
density than the Agriculture/Forestry zone unless the proposed subdivision
includes land previously identified as a preferred location for parkland.
9. Because land policies in the county beyond the area of city impact
significantly impact development pressures closer to the city of Moscow, it
is the policy of the city to consider Latah County development regulations
in setting regulations for the area of city impact.
10. The area of city impact should be regularly re-evaluated by the city
and county to identify areas which should be added because there is a
reasonable chance they might experience significant residential development
or be annexed in the subsequent 20 years, and areas which have little chance
of such development in 20 years and might better be administered solely by
the county.
11. Moscow recognizes that private mechanisms such as land trusts or
restrictive covenants can enhance development planning and preserve
environmental amenities in the area of city impact. The city is willing to
work with landowners and developers in planning such agreements.
APPLICABILITY OF ZONES WITHIN THE AREA OF CITY IMPACT
1. Within the area of city impact, land initially zoned Agriculture/Forestry
can be rezoned to any of the city of Moscow residential zones subject to the
following.
a. Land where city type development/annexation is imminent (say within five
years and within 1/4 mile of the city limits):
- if being rezoned for residential purposes, such parcels will ordinarily
be assigned a zone of Suburban/Residential or greater density.
- shall meet the goals and policies established for the area of city impact.
b. Land more distant from the city may be developed for rural residential
purposes as a stage of transition toward more dense urban development
through the Planned Unit Development (PUD) process or by rezoning to Farm/Ranch.
- The PUD process, in this case, is intended to facilitate development which:
- clusters homesites,
- preserves environmentally sensitive areas and viewsheds as open space, and
- preserves open spaces in contiguous farmable tracts.
- To accomplish this, residential densities in the AF zone could be
increased through the PUD process, where the actual lots created are
relatively small, and are clustered on less agriculturally productive land.
- Areas to be rezoned from AF to Farm/Ranch shall ordinarily total at
least 40 contiguous acres. However, smaller tracts may be considered for
Farm/Ranch zoning where the developer can show that the land is unsuited for
agricultural use for reasons such as soil, topography, or parcel
configuration, and that the rezone meets the other goals and policies
established for the area of city impact.
- While rezoning to residential densities greater than Farm/Ranch is
possible, such development is naturally limited by the availability of sewer
and water, and by the City of Moscow policy to only provide such services
outside the city limits in exceptional cases.
2. In rezoning land for industrial or commercial uses, first consideration
will be given to land currently designated as industrial or commercial on
the comprehensive plan map. In considering any additional proposals to
change the comprehensive plan map and rezone land to Industrial the
Commission shall:
- encourage such development adjacent to present and likely future
industrial or commercial areas.
- discourage such development amongst or adjacent to present and likely
future residential areas.
- require the use of buffer strips and other applicable methods to screen
industrial uses from highways and from other sensitive adjacent uses.
- require road, driveway, and intersection designs that control access as
needed to preserve traffic flow and safety.
- consider the effect of such development on traffic patterns, and on city
water and sewer system capabilities.
SECTION 15
PRIVATE PROPERTY RIGHTS
Introduction
Both the Federal Constitution and the constitution of the State of Idaho
provide that private property may not be taken for public use without just
compensation as prescribed by law. Idaho Code Sections 67-6508(a), 67-8001,
67-8002, and 67-8003 establish a review process which the City uses to
evaluate whether proposed regulatory or administrative actions result in a
taking of private property without due process of law. However, Section
67-8001 states that it is not the purpose of the Chapter to expand or reduce
the scope of private property protections provided in the State and Federal
Constitutions. Section 67-8003(2) states that nothing in the section grants
a person the right to seek judicial relief requiring compliance with the
provisions of the Chapter.
Any laws or regulations governing private property should heavily depend
upon the government's authority and responsibility to protect public health,
safety and welfare. Based upon this premise, courts have supported the
limitation of the use of private property through land use planning
regulations such as Comprehensive Plans, Zoning Ordinances, Subdivision
Ordinances and Environmental Quality Acts.
Goal
To ensure that Moscow City land use policies, restrictions, conditions and
fees do not violate private property rights and to establish a predetermined
orderly, consistent review process for the City of Moscow to evaluate
whether proposed regulatory or administrative actions may result in a taking
of private property without due process of law.
Objectives
1. Ensure that City land use actions, decisions and regulations will not
cause an unconstitutional physical occupation of private property.
2. Ensure that City land use actions, decisions and regulations do not cause
an unconstitutional physical invasion of private property.
3. Ensure that City land use actions, decisions and regulations do not
effectively eliminate all economic value of the private property.
4. Ensure that City land use actions, decisions and regulations depend upon
the City's responsibility to protect public health, safety and welfare.
5. Ensure that City land use actions, decisions and regulations do not
prevent a private property owner from taking advantage of a fundamental
property right or impose a substantial and significant limitation on the use
of the property.
Implementation Policy
It shall be the policy of the City of Moscow that City staff shall consider
the following questions in reviewing the potential impact of a regulatory or
administrative action on specific property. While these questions provide a
framework for evaluating the impact proposed regulations may have generally,
takings questions normally arise in the context of specific affected
property. The public review process used for evaluating proposed
regulations is another tool that the City should use aggressively to
safeguard rights of private property owners. If property is subject to
regulatory jurisdiction of multiple government agencies, each agency should
be sensitive to the cumulative impacts of the various regulatory restrictions.
Although a question may be answered affirmatively, it does not mean that
there has been a "taking". Rather, it means there could be a constitutional
issue and that City staff should carefully review the proposed action with
legal counsel.
1. Does the Regulation or Action Result in a Permanent or Temporary Physical
Occupation of Private Property?
Regulation or action resulting in a permanent or temporary physical
occupation of all or a portion of private property will generally constitute
a "taking". For example, a regulation that required landlords to allow the
installation of cable television boxes in their apartments was found to
constitute a "taking". See Loretto v. Teleprompter Manhattan CATV Corp.,
458 U.S. 419 (1982).
2. Does the Regulation or Action Require a Property Owner to Dedicate a
Portion of Property or to Grant an Easement?
Carefully review all regulations requiring the dedication of property or
grant of an easement. The dedication of property must be reasonably and
specifically designed to prevent or compensate for adverse impacts of the
proposed development. Likewise, the magnitude of the burden placed on the
proposed development should be reasonably related to the adverse impacts
created by the development. A court also will consider whether the action
in question substantially advances a legitimate state interest.
For example, the United States Supreme Court determined in Nollan v.
California Coastal Comm'm, 483 U.S. 825 (1987), that compelling an owner of
waterfront property to a public easement across his property that does not
substantially advance the public's interest in beach access, constitutes a
"taking". Likewise, the United States Supreme Court held that compelling a
property owner to leave a public green way, as opposed to a private one, did
not substantially advance protection of a floodplain, and was a "taking".
Dolan v. City of Tigard, 114 U.S. 2309 (June 24, 1994).
3. Does the Regulation Deprive the Owner of all Economically Viable Uses of
the Property?
If a regulation prohibits all economically viable or beneficial uses of the
land, it will likely constitute a "taking". In this situation, the agency
can avoid liability for just compensation only if it can demonstrate that
the proposed uses are prohibited by the laws of nuisance or other
pre-existing limitations on the use of the property. See Lucas v. South
Carolina Coastal Coun., 112 S. Ct. 2886 (1992).
Unlike 1. and 2. above, it is important to analyze the regulation's impact
on the property as a whole, and not just the impact on a portion of the
property. It is also important to assess whether there is any profitable
use of the remaining prop. available. See Florida Rock Industries, Inc. v.
United States, 18 F.3d 1560 (Fed. Cir. 1994). The remaining use does not
necessarily have to be the owner's planned use, a prior use or the highest
and best use of the property. One factor in this assessment is the degree
to which the regulatory action interferes with a property owner's reasonable
investment-backed development expectations.
Carefully review regulations requiring that all of a particular parcel of
land be left substantially in its natural state. A prohibition of all
economically viable uses of the property is vulnerable to a takings
challenge. In some situations, however, there may be pre-existing
limitations on the use of property that could insulate the government from
takings liability.
4. Does the Regulation Have a Significant Impact on the Landowner's Economic
Interest?
Carefully review regulations that have a significant impact on the owner's
economic interest. Courts will often compare the value of property before
and after the impact of the challenged regulation. Although a reduction in
property value alone may not be a "taking", a severe reduction in property
value often indicates a reduction or elimination of reasonably profitable
uses. Another economic factor courts will consider is the degree to which
the challenged regulation impacts any development rights of the owner. As
with 3. above, these economic factors are normally applied to the property
as a whole.
5. Does the Regulation Deny a Fundamental Attribute of Ownership?
Regulations that deny the landowner a fundamental attribute of ownership -
including the right to possess, exclude others and dispose of all or a
portion of the property -- are potential takings.
The United States Supreme Court recently held that requiring a public
easement for recreational purposes where the harm to be prevented was to the
flood plain was a "taking". In finding this to be a "taking", the Court stated:
The City never demonstrated why a public green way, as opposed to a private
one, was required in the interest of flood control. The difference to the
petitioner, of course, if the loss of her ability to exclude others. . .
[T]his right to exclude others is "one of the most essential sticks in the
bundle of rights that are commonly characterized as property."
Dolan v. City of Tigard, 114 U.S. 2309 (June 24, 1994). The United States
Supreme Court has also held that barring the inheritance (an essential
attribute of ownership) of certain interests in land held by individual
members of an Indian tribe constituted a "taking". Hodel v. Irving, 481
U.S. 704 (1987).
6. Does the Regulation Serve the Same Purpose that Would be Served by
Directly Prohibiting the Use or Action: and Does the Condition Imposed
Substantially Advance that Purpose?
A regulation may go too far and may result in a takings claim where it does
not substantially advance a legitimate governmental purpose. Nollan v.
California Coastal Commission. 107 S.Ct. 3141 (1987); Dolan v. City of
Tigard. 114 U.S. 2309 (June 24, 1994).
In Nollan, the United States Supreme Court held that it was an
unconstitutional "taking" to condition the issuance of a permit to land
owners on the grant of an easement to the public to use their beach. The
Court found that since there was no indication that the Nollans' house plans
interfered in any way with the public's ability to walk up and down the
beach, there was no "nexus" between any public interest that might be harmed
by the construction of the house, and the permit condition. Lacking this
connection, the required easement was just as unconstitutional as it would
be if imposed outside the permit context.
Likewise, regulatory actions that closely resemble, or have the effects of a
physical invasion or occupation of property, are more likely to be found to
be takings. The greater the deprivation of use, the greater the likelihood
that a "taking" will be found.