HomeMy WebLinkAboutJ D Hancock - OpposedDear council members,
It is my understanding that the council will consider the p & z's recommendation for re-zoning of the property of 1st North at its meeting on March 18, 2015. For over three months my
wife and I have had plane reservations to visit our children in Arizona next week and so therefore we will not be here in Idaho to attend the city council meeting to voice our concerns
about any action to be taken by the city council on this matter.
Here are my concerns:
(1) Idaho Code (Secs. 67-6519 and 67-6511) authorizes and allows cities and counties to provide for the procedure for processing zoning change applications.
As a general rule of law, only an owner or one possessing some proprietary interest in the land proposed to be re-zoned can make an application to change the zoning of the parcel
of land. Rexburg filed an "Application for Rezoning" on Feb. 2, 2015, and the rezoning application shows one has to be an "owner" "purchaser"or "lessee" of the parcel proposed to
be re-zoned. Also an "Affidavit of Legal Interest" must also accompany the application.
(2) In chapter 6 of the Administrative Procedures Ordinance pertaining to zoning, it provides that amendments to the ordinance (p & z ordinance) may be "initiated" by: (a) adoption
of motion by the p & z commission (Sec. 6.13 a.i.); (b) adoption of motion by the council (Sec 6.13a.ii.); or (c) filing an application by a property owner within the area proposed
to be changed by the amendment (re-zoning). The dictionary defines "initiate" as "To begin or originate." It seems that the clear reading of the language in the ordinance requires
that a motion must be made and passed (adopted) by the city council or the planning and zoning commission to rezone an area authorizing the designated city official to file an application
for rezoning BEFORE the city can actually file an application for rezoning to begin the rezoning process. No such motion was made by the City Council or P & Z commission before filing
the application to rezone this area. Although "technical", this is a violation of procedural "due process."
In checking with the p & z office, no application was filed by a property owner within the area proposed to be re-zoned. In reviewing the minutes of the p & z commission and the city
council, no motion was made nor adopted (passed) by the City or P & Z in any of their regular public meetings to file an application for rezoning proposing a change in the zoning of
this area prior to the public hearing held on March 5. Following the adoption of such a motion, then the procedure outlined for any applicant desiring to re-zone land should be followed,
i.e. filing a written application with all required information (Ch. 6.9 through 6.13), public hearing, notice to affected landowners, etc. There is no exception nor exemption for
the City not to comply if the City proposes to re-zone a given area. I seriously question whether the City should initiate a change in zoning when there has been no written request
made by a property owner to change the zoning in any given area.
(3) Now is not the proper time to rezone such a large portion of the City because (a) we already have an abundance of business and commercially zoned property; (b) the transition
area for further commercial development will likely follow the N. 2nd E./Salem Hwy corridor where the new Wal Mart is to be built; (c) there are numerous business and commercial properties
available
for rent or for sale on N. 2nd E., in South Fork Plaza and in the downtown business district; and (d) no property owner within this area (the north side of 1st N. between 1st E. and
2nd W.) has actually filed a written request for a zone change.
Although the city attorney may assert that the City does not have to comply with the technical procedures outlined in chapter 6.13, I would like to see the actual citations to Idaho
case and statutory law which support such a claim.
In recent years, there have been numerous changes in the city's comprehensive plan, classification of zones and zoning changes to accommodate special interests. Those who buy or build
pursuant to a set of criterion required by a designated zone should have some assurance that their property rights will be protected and preserved.
My suggestions are: Defer any action on the recommendation from the P&Z Commission until procedural due process has been properly complied with; or, schedule a public hearing before
the City Council on this proposed re-zoning. If the real issue is changing the zoning in the half block between 1st E and 2nd E or between 1 E and Center Streets, then re-zone those
areas if that's what the landowners in those areas want. Those owning the property on the north side of 1st N between Center St. and 1st W do not desire a change in zoning at this
particular time. Also, I would suggest that the city council defer any decision until after the city attorney provides a legal memorandum citing the case precedent and statutory authority
for the city's action thus far.
Thank you for your consideration of the issues and suggestions I have made.
Sincerely, J. D. Hancock, Rexburg, Idaho 208-356-9653