Planning and Zoning Fundamentals

PRACTICES THAT WORKSUMMER 2017

Cities and Counties ObligatedIdaho Code §67-6503

Every city and county must plan and zone.

No direct state involvement.No direct penalty for failure to comply – many consequences

Role of the P-Z Commission(or City Council)

Focus on policies in comprehensive plan Advise the governing board Perform duties prescribed by ordinance or

statute – respect procedural requirements Respond to requests by governing board Work with planning staff and legal counsel Help implement policy choices made by

the governing board – even if disagree

Responsibilities of P-Z/CC

Know the law and protect the interests of all who come before either board

Step back from specific cases to see the overall good – parties will seek own benefit

Make decisions and move on –communicate with one another

Be efficient with others’ time and energy Look ahead to consider future

consequences of today’s decisions

Liability and Public Service

Treat the city’s liability exposure as your own

Your service is protected by the Idaho Tort Claims Act as long as you are acting in good faith to carry out your public duty

Same is true for civil rights lawsuit exposure Freelance and you are on your own Follow the procedural advice of legal

counsel Don’t allow discriminatory comments to go

unchallenged

Comprehensive Plan RequiredIdaho Code §67-6508

Planning commission (or governing board) must conduct comprehensive planning process.

Must include all land within jurisdiction.Consider current conditions, future goals,

etc.Must include all 17 elements unless

explain why one or more is unneeded.

Comprehensive Plan Elements

Property rights

Population

School facilities and transportation

Economic development

Land use

Natural resources

Hazardous areas

Agriculture

Public services – utilities

Transportation

Recreation

Special areas or sites

Housing

Community design

Implementation

Airport facilities

Electric Transmission Corridors

Comprehensive Planning Procedures

Idaho Code §67-6509. Adopt comprehensive plan by resolution Must conduct at least one public hearing.

Your ordinance may require 2. 15 days published notice required. Governing board may require second

public hearing or act on record/recommendation.

Amend text or land-use map at any time, subject to your ordinance requirements.

Zoning Ordinance RequiredIdaho Code §67-6511

Procedures mirror comprehensive plan. Must be “in accordance with” comprehensive plan

policies – serves to implement plan Published, mailed and posted notices may be

required. Default published notice when more than 200 must

be notified. Zone change granted at request of owner, can’t be

changed for four years without owner’s consent.

Special Use PermitsIdaho Code §67-6512

Conditionally permitted uses –shades of gray.

Must integrate with their surroundings -more about “how” than “what”.

Ordinance should contain list of typical conditions.

Transferable from one owner to another.Ordinance should contain expiration term if

use not implemented in certain time.

Subdivision Ordinances AuthorizedIdaho Code §67-6513

Works in conjunction with Title 50, Chapter 13. (platting)

Adoption and amendment of subdivision ordinance requires public hearing.

Hearings not required (but recommended) for individual subdivisions.

Ordinance can provide for mitigation of effects, but fees must accord with development impact fee statute.

Administration is critical.

VariancesIdaho Code §67-6516

Constitutionally required safety valve. Allows leeway concerning building bulk or placement. Does not involve questions of “use”. Appropriate only in case of undue hardship due to

characteristics of the site. Must then demonstrate “not contrary to the public

interest”. Must provide written notice to adjacent property owners.

Development StandardsIdaho Code §67-6518

Authorizes adoption of standards for many development-related purposes.

Be cautious of adopting standards “by reference”.

A necessary complement to a subdivision or zoning ordinance.

Care should be taken to see that standards are current and consistent with national codes.

Appeals of Local DecisionsIdaho Code §67-6521 and §67-6535

May only be brought by affected person. Affected person must own real estate affected by decision.

Reconsideration must be sought within 14 days of final decision. Must state specific reason.

After reconsideration, appeals handled as judicial review of established record.

Appeal must be brought within 28 days of final decision – notice of decision is essential

Taking considerations may be addressed by takings analysis.

Area of City Impact Idaho Code§67-6526

Agreement authorized between city and county to recognize future growth needs of cities.

Procedures involve planning commissions, governing boards and possible committee of nine to reach agreement.

Require separate ordinances to designate area and establish restrictions.

Must be reviewed at least once every 10 years. Proportionate representation must be provided on city

planning and zoning commission from the area of city impact if city ordinance governs (but it can’t).

Public Hearings

MAKING LOCAL GOVERNMENT A PARTICIPATORY SPORT

Conflict of Interest ProhibitionsIdaho Code §67-6506

Participation forbidden if economic conflict of interest.

Disclosure of conflicts is mandated.Participation means serving as a decision

maker or taking part in deliberations.Board members can speak as citizens as

long as they do not participate.Knowing violation is misdemeanor crime

Types of Public Hearings

Legislative hearingsMatters of general concernOpen-ended for comments

Quasi-judicial hearingsDeals with specific rights of individualDue process is requiredNotice and opportunity to be heard

Introduction of Hearing Process

Introduce the participantsExplain the nature of the issueDescribe what will be persuasiveOutline steps that have gone before

Completed applicationNoticeInformation from other agencies

Legislative Hearings

Subject (ordinance draft) must be rough-prepared at time notice is published

Record should be built from date of publication

Comment can be received anytime – even after public hearing

Open format for hearing “Closing” hearing doesn’t affect rights

Quasi-judicial Hearings

Land use and licensing – primary topicsDue process is imperative Comments should come during hearing – no

ex parte contact Create a record Explain effective participation methodsDescribe roles of participants

Notice Requirements

Published notice – who does it?Mailed notice – who does it?

First class or certified? Posted notice – who does it? Keep recordsWhat about failed notice? Providing more than you need Explain the rules of participation in notice

Steps in Order

Applicant presentationStaff presentationWritten correspondence (limited)Testimony by supportersComments by neutrals

Present and Rebut

Opponents speak

Rebuttal by Applicant

Address only points raised by objectors.No new evidence should be submitted. If new evidence is presented, hearing

should be reopened for limited response to rebut the new evidence.

All comment should be directed through the chairperson.

Quasi-Judicial Decision RequirementsIdaho Code §67-6535

Decisions must be based on express standards and objective criteria in comprehensive plan and ordinances.

Decision must be in writing accompanied by a written statement that explains criteria and standards, facts relied upon and rationale.

Legislature directs courts to be practical in their review of decisions emphasizing fundamental fairness and remedying only actual harms, not the mere possibility of harm.

Examples of Decision Criteria

Zone change - §67-6511 Accord with policies of

comprehensive plan

Variance - §67-6516 Exceeds bulk and placement

standards

Undue hardship due to site characteristics

Not in conflict with the public interest

Serves as constitutional safety valve

Special Use Permit/PUD -§§67-6512/67-6515 Expressly allowed?

Minimize adverse impact

Timing and duration

Adequate facilities

More restrictive standards

Mitigation of effects

Special studies

Not limited to use

Subdivision Criteria

Lot configuration meet zoning standards? Meets standards for streets – width, configuration,

geometry, continuity, etc. Site grading stability Complies with water and sewer standards Storm water standards Sidewalks and pathways Street lighting Other express requirements Want the site to be subdivided? – a zoning question

Adoption of Hearing ProceduresIdaho Code §67-6534

Hearing procedures may be adopted by ordinance or resolution.

Must provide opportunity to present and rebut evidence.

Important to explain hearing procedures to participants. Desirable to include in notices.

Authorize exceptional procedures in exceptional cases-time limitations, restrictions on submittals, etc.

Transcribable Record of ProceedingsIdaho Code §67-6536

Must be retained for six months after the final decision on the matter – longer, if appealed.

Must include all public hearings at which testimony or evidence received or when any affected person addresses the commission or governing board.

Deliberations must also be recorded. Transcription must be provided at the requestor’s

expense. Minutes must be maintained indefinitely.