Idaho Senate votes to weaken planning in Idaho

[Tom Lamar <lamar@pcei.org>]

A big change from Bikinis, but time to move onto one this list was meant to
address, planning.  The Idaho Senate voted this week to weaken the force of
the Comprehensive Plan has at the local government level.  Below is a
summary from our Smart Growth Listserve.  Sorry about the length.

Tom

Senate Bill 1201 Update

On Tuesday, the Idaho Senate passed Senate Bill 1201 on to the House.  It
will now be considered by the House Local Government Committee.  We'll let
subscribers to this list know as soon as we find out when the bill will be
considered by this committee.

To review, the bill features a host of amendments to the Local Land Use
Planning Act and was originally heard by the Senate Local Government and
Taxation Committee.  The Committee voted to send the bill to the 14th
order, which would open the bill up for amendments.  A majority of the
Committee felt that there were some problems or at least questions about
the bill that could be addressed by amendments.

The opportunity to amend the bill never materialized, however, because the
bill's sponsor (Sen. Judi Danielson, R-Council) was able to pass a motion
on the floor of the Senate to remove the bill from the 14th order.
 Consequently, the bill was passed onto the House without any amendments,
even though a majority of the Senate Committee felt amendments should at
least be considered.   There may be opportunities to amend the bill on the
house side.

That's the status of the bill as of Thursday night.  Now, what are the
implications of the bill, should it be signed into law as is?
First, a brief history.  As everyone on this list knows, the Interim
Committee on Private Property Rights met last Summer and Fall.  At their
final official meeting on November 18, 1998, the Interim Committee adopted
a set of findings and recommendations.  One of their recommendations stated

"The Committee recommends to the legislature that the ex-officio members of
the Committee be encouraged to review the Local Land Use Planning Act and
develop legislation condensing, streamlining and updating the Act."

Definition:  the ex-officio members are non-voting members of the Interim
Committee on Private Property Rights.  Ex-officio members include
representatives from the Idaho Farm Bureau, Idaho Association of Realtors,
Idaho Association of Counties, Association of Idaho Cities, and the State
Attorney General's office.

The ex-officio members met more than once to discuss possible changes to
the Local Land Use Planning Act.  These meetings resulted in SB 1201.
 Organizations and individuals participating in these ex-officio meetings
included the Association of Idaho Cities, the Idaho Association of
Counties, the Idaho Realtors Association, Local Highway Technical
Assistance Council, Building Contractor's organizations, a few city and
county planners,  a couple of local elected officials, and one or two city
attorneys.

There are two schools of thought regarding SB1201 that I want to summarize:

The "Lack of Due Process" School
This school of thought says that the Local Land Use Planning Act affects
every city, town, and hamlet in Idaho and that amending a law of this
significance must be done carefully and thoughtfully and with considerable
review and input by all concerned interests.  Consequently, this school has
a fundamental problem with the way SB 1201 was drafted.  It was not done
out in the open.  It was done by a process in which some interests were
invited to participate, and some were not.  Very few people were provided
an opportunity to review the proposed legislation before it was introduced
and printed as a bill.  Finally, the Due Process School feels that there is
no emergency need to amend the Act right now and that a more thorough
public review of SB1201 should be provided later this year, given that some
of the changes the bill would make to the Local Land Use Planning Act are
arguably more significant than "technical corrections and housekeeping
changes".  (as stated in the bill's purpose) This School of Thought isn't
too interested in talking about amendments because to do so would be to
condone and perpetuate the lack of due process in the original drafting of
the bill.

The Lack of Due Process School is more inclined to work to defeat or at
least table the bill on the grounds that it was an indirect product of the
Interim Committee on Private Property Rights, yet the members of the
Interim Committee never reviewed the bill prior to its introduction in the
legislature.  In addition, the concerns and opinions of several interests
were not considered in the drafting of the bill.  Concerned citizens and P
and Z Commissioners, in particular, were not provided an opportunity to be
heard by either the elected or ex-officio members of the Interim Property
Rights Committee.

The "Maybe We can Make it Work" School
This school of thought isn't crazy about the process used to draft the bill
either.  However, advocates of this school are perhaps more willing to
compromise.  They are more willing to sit down and discuss the possibility
of amending the bill in a way that would allow support for passage of the
bill.

Specific amendments that seem to be the most troublesome are summarized
below.  If you follow your P and Z Commission, Council, and/or County
Commission, consider how these amendments would affect development
decisions in your area:

Section 5 of SB 1201
There is a proposal to allow the amendment of comprehensive plan text at
any time.  The current statute says that comprehensive plans can only be
amended twice a year.  SB1201 says that comp. plan text can be amended any
time, but that comp. plan maps could only be amended twice a year (the
current limitation).  Obviously, this proposal would open the comprehensive
plan up to more frequent, ad hoc changes.

Section 8 of SB 1201
There is a proposal to say that when they are presented with a request to
amend the zoning ordinance, P and Z Commissions would have to consider the
comp. plan, rather than ensure the amendment was consistent with the comp.
plan (as the statute currently requires).  This one will take some
explaining.

Here's the rationale behind the change:  currently, if the P and Z
Commission finds that a request to change the zoning ordinance is not
consistent with the comp. plan, the request can not be heard by the City
Council or the County Commission.  This is the literal interpretation of
the Act.  In practice, P and Z Commission's likely forward to the council
or county commission a recommendation to deny the request if that request
is not consistent with the comp. plan.

The purpose of the proposed change is to grease the skids a little bit by
removing any possibility that a request to change the zoning ordinance
would end or die with the P and Z Commission if that request is found to be
inconsistent with the comp. plan.  The idea may have merit, but the use of
the word "consider" is unfortunate.  The same objective could and should be
reached by inserting language that would allow the P and Z Commission to
forward a recommendation to deny the request based on a finding that it is
not consistent with the comp. plan.  Then the Council or County Commission
could either agree or not agree with P and Z's finding.  At least this way,
the P and Z and the Council/County Commission would be using the same
language and asking themselves the same questions when considering whether
or not a request to change the zoning ordinance is appropriate.  If the
request is not consistent with the comp. plan, then a change to the comp.
plan can be initiated.

It is important to note that even with this change proposed in SB1201,
Councils and County Commissions could not approve requests to change the
zoning ordinance if that request is not consistent with the comp. plan.
SB1201 only affects the procedure used by the P and Z Commissions.
A strong argument is that P and Z Commissions often have a more thorough
knowledge of the Comprehensive Plan and zoning ordinance.  Although they
are not and should not be the final decision making body, they should be
entrusted to do more than merely "consider" the comp. plan; they should be
allowed to make a strong statement to the council/county commission as to
whether or not a zoning ordinance change is consistent or not consistent
with the comp. plan.  Some argue about the definition of "consistent".  An
equally relevant question would be:  what is the definition of "consider".
A request to change the zoning ordinance can be presented to local
governments for a variety of reasons.  Anybody can request the change.
Typically, land owners want to use their property in some way that is not
allowed by the zoning ordinance, so they make a request that the ordinance
be changed to allow them to do what they want to do.

Section 11 of SB1201
Section 11 has to do with subdivision ordinances and the fact that local
governments can provide for mitigation of the impacts of subdivision
development in their subdivision ordinances.  SB 1201 proposes that the
following sentence be added to this part of the Land Use Act:
"Fees established for purposes of mitigating the financial impacts of
development must comply with the provisions of chapter 82, title 67, Idaho
Code".  The purpose of this change is to prevent a local government from
trying to collect impact fees without an adopted impact fee ordinance.  One
view is that this merely inserts in the Local Land Use Planning Act what is
already stated in Chapter 82, title 67 dealing with impact fees.  The other
view is that this provides local governments with a disincentive for
collecting impacts fees.  Mitigation or impact fees are a way to reduce the
burden of growth impacts on the general population (taxpayers).

Section 17 of SB1201
The bill proposes to remove a requirement that land use decisions be
accompanied by "findings of fact and conclusions of law".  In its place,
local governments would have to write "reasoned" statements that explain
the rationale for the decision and describe the applicable plans, statutes,
and ordinances, etc.  One view is that this change is matter of semantics
and won't make much difference in the decision-making process.  The
justification given for the change is that no one knows what findings of
fact and conclusions of law really are and that writing them is just an
exercise in red tape.  The other view is that if it's working the way it
is, why change it?  If we change it, there could be litigation necessary to
determine the definition of a "reasoned" statement.  Wasn't the purpose of
the bill to reduce litigation?  There are plenty of legal, case law
precedents for use of "findings of fact and conclusions of law".
Section 17 of SB 1201 also includes a new subsection (c) which is intended
to reduce the amount of punitive appeals and challenges filed by people
opposed to a particular development.  It gives direction to the court,
asking or instructing the court to emphasize "fundamental fairness and the
essentials of reasoned decision-making" (whatever that means).  Finally,
this subsection ends with the following sentence:  "Only those whose
challenge to a decision demonstrates actual harm or violation of
fundamental rights, not the mere possibility thereof shall be entitled to a
remedy or reversal of a decision."  This sentence tilts the playing field
in the direction of developers and owners of land being developed, since
neighbors adversely impacted by a development would have a much more
difficult time proving that they have been harmed or that the value of
their property has been reduced by the mere approval of a development
application.

Jon Barrett
Idaho Smart Growth

Thomas C. Lamar, Executive Director

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Palouse-Clearwater Environmental Institute
P O Box 8596; 112 West 4th St; Suite #1
Moscow ID 83843-1096
Phone (208)882-1444; Fax (208)882-8029
url:  http://www.moscow.com/pcei

Please Note our individual staff email addresses below:

Thomas C. Lamar, Executive Director: lamar@pcei.org
Kathleen Lester, Office Manager/Environmental Education: lester@pcei.org
Laurie Gardes, Financial Manager:  gardes@turbonet.com
Anita Grover, Watersheds: grover@pcei.org
Colette DePhelps, Community Food Systems: dephelps@pcei.org
Peggy Adams, Watersheds/Food Systems: peggy931@uidaho.edu
Jon Barrett, Idaho Smart Growth:  smartgro@micron.net
Elaine Clegg, Idaho Smart Growth:  eclegg@micron.net

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