HomeMy WebLinkAbout10 COMMANDMENTS OF P&Z - Comprehensive Plan 2003TEN COMMANDMENTS OF
PLANNING AND ZONING
(revised for 2001)
I. Know Your Purpose And Pursue It
Many local jurisdictions undertake planning and zoning efforts simply because
the statutes of the State of Idaho require them to. To be certain, Idaho
Code 67-6503 does require that each city and county in Idaho undertake
planning and zoning activities as prescribed in the Local Land Use Planning Act.
The purposes your city pursues as a result of its comprehensive planning
efforts can be the most important policy statement that your governing board
may ever make. Aside from this planning opportunity, there are few occasions
when a governing board merely sits down and attempts to explain, to itself and
to the residents of its community, where it thinks the future of the
community lies. Comprehensive planning provides an opportunity for soul
searching and for looking beyond tomorrow to determine what shape your
community should take. One of the greatest benefits of Idaho's Local
Planning Act is that it vests all authority in the hands of local officials, rather
than the hands of state or federal officials who do not know your city and who
do not have the same duties of community stewardship that you possess.
Idaho Code § 67-6502 provides a broad statement of purpose for all
planning efforts within the state. A copy of that Code section is set forth
below:
67- 6502. Purpose.
The purpose of this act shall be to promote the health, safety, and
general welfare of the people of the state of Idaho as follows:
(a) To protect property rights while making accommodations for other
necessary types of development such as low-cost housing and mobile home
parks.
(b) To ensure that adequate public facilities and services are provided
to the people at reasonable cost.
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(c) To ensure that the economy of the state and localities is
protected.
(d) To ensure that the important environmental features of the state
and localities are protected.
(e) To encourage the protection of prime agricultural, forestry, and
mining lands for production of food, fibre, and minerals.
(f) To encourage urban and urban -type development within
incorporated cities.
(g) To avoid undue concentration of population and overcrowding of
land.
(h) To ensure that the development on land is commensurate with the
physical characteristics of the land.
(i) To protect life and property in areas subject to natural hazards
and disasters.
0) To protect fish, wildlife, and recreation resources.
(k) To avoid undue water and air pollution.
(1) To allow local school districts to participate in the community
planning and development process so as to address public school needs and
impacts on an ongoing basis.
As you can see, the contents of that section can mean all things to all
people. It is up to you and your community to apply your judgment in light of
the values of your citizenry and elected officials. Too often we treat the
statement of purpose in the comprehensive plan as if it were mere boiler plate
- to state on one occasion and to be forgotten everaf ter. Nothing should be
farther from the truth. The purposes of the comprehensive plan should be to
identify those goals and targets which the community thinks are most
important. It should identify what the community is intending to try to
achieve. Further, it is absolutely appropriate for communities to decide which
issues upon which they choose to turn loose the powers of government in
order to achieve public goals. The purpose of the Comprehensive Plan should
be to provide a prioritization of the community's values so that when private
actions are brought before the city for review and consideration, the highest
purposes to be achieved by the regulations of the city are known to everyone.
Aside from causing us to think about what we want our community to be,
these statements of purpose can often become the foundation that your
attorney may need in order to defend decisions you make regarding
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applications for planning and zoning permits. If the Statement of Purpose set
forth in your Comprehensive Plan is so broad and general that it leads the
reader nowhere, any permit applicant disappointed by your decision on his/her
application will be able to point to some provision of the Statement of Purpose
of the Plan to further his/her cause. Nearly everyone can agree with the
general premises of the Statements of Purpose contained both in the statutes
and most Comprehensive Plans. True hard work in the planning and zoning
process comes from sifting through those general principles to develop
specific goals and policies which rank priorities comparatively in terms of what
matters most to the community.
Don't forget to address every comprehensive planning issue required by
the Local Planning Act. Check - several have been added in the past decade -
an older plan may be out of date.
67-6508. Planning duties.
It shall be the duty of the planning or planning and zoning commission
to conduct a comprehensive planning process designed to prepare,
implement, and review and update a comprehensive plan, hereafter referred
to as the plan. The plan shall include all land within the jurisdiction of the
governing board. The plan shall consider previous and existing conditions,
trends, desirable goals and objectives, or desirable future situations for
each planning component. The plan with maps, charts, and reports shall be
based on the following components as they may apply to land use regulations
and actions unless the plan specifies reasons why a particular component is
unneeded.
(a) Property Rights - An analysis of provisions which may be
necessary to insure that land use policies, restrictions, conditions and fees
do not violate private property rights, adversely impact property values or
create unnecessary technical limitations on the use of property and analysis
as prescribed under the declarations of purpose in chapter 80, title 67,
Idaho Code.
(b) Population - A population analysis of post, present, and future
trends in population including such characteristics as total population, age,
sex, and income.
(c) School Facilities and Transportation - An analysis of public school
capacity and transportation considerations associated with future
development.
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(d) Economic Development - An analysis of the economic base of the
area including employment, industries, economies, jobs, and income levels.
(e) Land Use - An analysis of natural land types, existing land covers
and uses, and the intrinsic suitability of lands for uses such as agriculture,
forestry, mineral exploration and extraction, preservation, recreation,
housing, commerce, industry, and public facilities. A map shall be prepared
indicating suitable projected land uses for the jurisdiction.
(f) Natural Resource - An analysis of the uses of rivers and other
waters, forests, range, soils, harbors, fisheries, wildlife, minerals, thermal
waters, beaches, watersheds, and shorelines.
(g) Hazardous Areas - An analysis of known hazards as may result
from susceptibility to surface ruptures from faulting, ground shaking,
ground failure, landslides or mudslides; avalanche hazards resulting from
development in the known or probable path of snowslides and avalanches,
and floodplain hazards.
(h) Public Services, Facilities, and Utilities - An analysis showing
general plans for sewage, drainage, power plant sites, utility transmission
corridors, water supply, fire stations and fire fighting equipment, health
and welfare facilities, libraries, solid waste disposal sites, schools, public
safety facilities and related services. The plan may also show locations of
civic centers and public buildings.
(i) Transportation - An analysis, prepared in coordination with the
local jurisdiction(s) having authority over the public highways and streets,
showing the general locations and widths of a system of major traffic
thoroughfares and other traffic ways, and of streets and the recommended
treatment thereof. This component may also make recommendations on
building line setbacks, control of access, street naming and numbering, and
a proposed system of public or other transit lines and related facilities
including rights-of-way, terminals, future corridors, viaducts and grade
separations. The component may also include port, harbor, aviation, and
other related transportation facilities.
(j) Recreation - An analysis showing a system of recreation areas,
including parks, parkways, trailways, river bank greenbelts, beaches,
playgrounds, and other recreation areas and programs.
(k) Special Areas or Sites - An analysis of areas, sites, or structures
of historical, archeological, architectural, ecological, wildlife, or scenic
significance.
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(1) Housing - An analysis of housing conditions and needs; plans for
improvement of housing standards; and plans for the provision of safe,
sanitary, and adequate housing, including the provision for low-cost
conventional housing, the siting of manufactured housing and mobile homes in
subdivisions and parks and on individual lots which are sufficient to maintain
a competitive market for each of those housing types and to address the
needs of the community.
(m) Community Design - An analysis of needs for governing
landscaping, building design, tree planting, signs, and suggested patterns
and standards for community design, development, and beautification.
(n) Implementation - An analysis to determine actions, programs
budgets, ordinances, or other methods including scheduling of public
expenditures to provide for the timely execution of the various components
of the plan.
Nothing herein shall preclude the consideration of additional planning
components or subject matters (1996)
be not take this duty lightly; it sets the stage for everything else you
do. If you do not provide a focus for your planning efforts you set the stage
to enable the community's leadership to wander aimlessly as it confronts
issues one by one in the course of years to come.
II. Know the Law and Keep Current
In today's world nothing stays the same. The law regarding planning and
zoning activities is no exception. Not only do changes occur as a result of
court decisions, but every year the legislature convenes to determine (among
other things) whether the planning and zoning laws will remain the same. In
some years the changes are minor, but in others they are quite substantial.
The 2000-2001 legislatures produced few significant changes to the laws
which govern planning and zoning activities.
The Idaho Association of Counties, Association of Idaho Cities and the
Idaho Planning Association provide excellent sources of planning and zoning
information. Develop an appetite for reading association publications
thoroughly as they will find and report to you many important legal highlights
which govern your activities. This outline will contain the results in the
planning and zoning arena of the 2000 - 2001 legislative sessions. Among the
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bills that passed which affect local government planning and zoning are the
following:
House Bill 601 - Mediation (2000)
Statement of Purpose
This proposal allows greater flexibility for finding solutions on difficult
land use planning issues. Pre and post -decision mediation is voluntary for
governing boards caught between permit applicants and neighboring property
owners.
67-6510. MEDIATION -- TIME LIMITATIONS TOLLED.
(1) The procedure established for the processing of applications by
this chapter or by local ordinance shall include the option of mediation upon
the written request of the applicant, an affected person, the zoning or
planning and zoning commission or the governing board. Mediation may occur
at any point during the decision-making process or after a final decision has
been made. If mediation occurs after a final decision, any resolution of
differences through mediation must be the subject of another public hearing
before the decision-making body.
(2) The applicant and any other affected persons objecting to the
application shall participate in at least one (1) mediation session if mediation is
requested by the commission or the governing board. The governing board
shall select and pay the expense of the mediator for the first meeting
among the interested parties. Compensation of the mediator shall be
determined among the parties at the outset of any mediation undertaking. An
applicant may decline to participate in mediation requested by an affected
person, and an affected person may decline to participate in mediation
requested by the applicant, except that the parties shall participate in at
least one (1) mediation session if directed to do so by the governing board.
(3) During mediation, any time limitation relevant to the
application shall be tolled. Such tolling shall cease when the applicant or any
other affected person, after having participated in at least one (1) mediation
session, states in writing that no further participation is desired and notifies
the other parties, or upon notice of a request to mediate wherein no mediation
session is scheduled for twenty-eight (28) days from the date of such
request.
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(4) The mediation process may be undertaken pursuant to the
general limitations established by this section or pursuant to local ordinance
provisions not in conflict herewith.
(5) The mediation process shall not be part of the official
record regarding the application.
51394 Free Exercise of Religion Act (2000)
Statement of Purpose
The purpose of this legislation is to reestablish a test which courts
must use to determine whether a person's religious belief should be
accommodated when a government action or regulation restricts his or her
religious practice. The test, known as the "compelling interest test," requires
the government to prove with evidence that its regulation is (1) essential to
achieve a compelling governmental interest and (2) it is the least restrictive
means of achieving the government's compelling interest.
Prior to 1990 the U.S. Supreme Court used the above test --the
"compelling interest test" --when deciding religious claims. However, in a 1990
decision (Employment Div. of Oregon v. Smith) the Court tipped the scales of
justice in favor of government regulation by throwing out the compelling
interest test, which had shielded our religious freedom from onerous
government regulation for more than 30 years. The Smith decision reduced
the standard of review in religious freedom cases to a "reasonableness
standard." While all other fundamental rights (freedom of speech, press,
assembly, etc.) remain protected by the stringent "compelling interest test,"
the Court singled out religious freedom by reducing its protection to the weak
"reasonableness test."
A widely recognized principle of law is that states are free to protect
an individual's right with a much higher standard than the U.S. Constitution
itself affords. Thus, in light of this principle in conjunction with the Boerne
decision, states are free to enact their own RFRA's thereby choosing to apply
the higher "compelling interest test" standard in their own religious freedoms
cases. .
73-402. FREE EXERCISE OF RELIGION PROTECTED.
(1) Free exercise of religion is a fundamental right that applies in
this state, even if laws, rules or other government actions are facially
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neutral.
(2) Except as provided in subsection (3) of this section, government
shall not substantially burden a person's exercise of religion even if the
burden results from a rule of general applicability.
(3) Government may substantially burden a person's exercise of
religion only if it demonstrates that application of the burden to the person is
both:
(a) Essential to further a compelling governmental interest;
(b) The least restrictive means of furthering that compelling
governmental interest.
(4) A person whose religious exercise is burdened in violation of this
section may assert that violation as a claim or defense in a judicial proceeding
and obtain appropriate relief against a government. A party who prevails in
any action to enforce this chapter against a government shall recover
attorney's fees and costs.
(5) In this section, the term "substantially burden" is intended solely
to ensure that this chapter is not triggered by trivial, technical or de
minimis infractions.
73-403. APPLICABILITY. (1) This chapter applies to all state laws and
local ordinances and the implementation of those laws and ordinances,
whether statutory or otherwise, and whether enacted or adopted before, on
or after the effective date of this chapter.
(2) State laws that are enacted or adopted on or after the effective
date of this chapter are subject to this chapter unless the law explicitly
excludes application by reference to this chapter.
(3) This chapter shall not be construed to authorize any government to
burden any religious belief. (Emergency)
Manufactured Housing - H154 (2001)
The purpose of this legislation is to ensure that if zoning ordinances require a
manufactured home to have a garage or carport, the same requirement will
apply to a non -manufactured home.
67-6509A. SITING OF MANUFACTURED HOMES IN RESIDENTIAL
AREA5 -- PLAN TO BE AMENDED.
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(1) By resolution or ordinance adopted, amended or repealed in
accordance with the notice and hearing procedures provided under section
67-6509, Idaho Code, each governing board shall amend its comprehensive
plan and land use regulations for all land zoned for single-family residential
uses, except for lands falling within an area defined as a historic district
under section 67-4607, Idaho Code, to allow for siting of manufactured homes
as defined in section 39-4105(13), Idaho Code.
(2) Manufactured homes on individual lots zoned for single-family
residential uses as provided in subsection (1) of this section shall be in
addition to manufactured homes on lots within designated mobile home parks
or manufactured home subdivisions.
(3) This section shall not be construed as abrogating a recorded
restrictive covenant.
(4) A governing board may adopt any or all of the following placement
standards, or any less restrictive standards, for the approval of manufactured
homes located outside mobile home parks:
(a) The manufactured home shall be multi -sectional and enclose a
space of not less than one thousand (1,000) square feet;
(b) The manufactured home shall be placed on an excavated and
backfilled foundation and enclosed at the perimeter such that the home is
located not more than twelve (12) inches above grade;
(c) The manufactured home shall have a pitched roof, except that no
standards shall require a slope of greater than a nominal three (3) feet in
height for each twelve (12) feet in width;
(d) The manufactured home shall have exterior siding and roofing
which in color, material and appearance is similar to the exterior siding and
roofing material commonly used on residential dwellings within the
community or which is comparable to the predominant materials used on
surrounding dwellings as determined by the local permit approval authority;
(e) The manufactured home shall have a garage or carport
constructed of like materials.
if zoning
ordinances would require a newly constructed nonmanufactured home to
have a garage or carport;
(f) In addition to the provisions of paragraphs (a) through (e) of this
subsection, a city or county may subject a manufactured home and the lot
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upon which it is sited to any development standard, architectural requirement
and minimum size requirements to which a conventional single-family
residential dwelling on the same lot would be subjected.
(5) Any approval standards, special conditions and the procedures
for approval adopted by a local government shall be clear and objective and
shall not have the effect, either in themselves or cumulatively, of
discouraging needed housing through unreasonable cost or delay.
EMERGENCY COMMUNICATIONS TOWERS -
H232 (2001)
This legislation provides for a new chapter of Title 55, Idaho Code, dealing
with emergency communications by amateur radio operators. The purpose, of
this chapter is to preserve the capability of amateur radio operators within
Idaho to provide radio communications in times of emergency and disaster.
The bill specifies that local units of government cannot enact rules or
ordinances not in conformity to federal law. Additionally, local ordinances and
rules based on health, safety and aesthetic considerations must reasonably
accommodate amateur radio
communications.
am
55-2901. SHORT TITLE. This chapter shall be known and may be cited
"The Emergency Communications Preservation Act."
55-2902. PURPOSE. The purpose of this chapter is to preserve the
capability of amateur radio operators within the state of Idaho to provide
radio communications in times of emergency and disaster.
55-2903. DEFINITIONS. When used in this act:
(1) "Antenna' means any array of wires, tubing or similar materials used
for the transmission and reception of radio waves.
(2) "Antenna support structure" or "tower" means a structure or
framework that is designed to elevate an antenna above the ground for the
purpose of increasing the effective communications range and reliability of an
amateur radio station.
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(3) "Amateur radio" means the use of amateur and amateur -satellite
radio frequencies and services used by licensed, qualified persons of any age
who are interested in radio technique without pecuniary remuneration. These
services present an opportunity for public service, emergency
communications, self -training, intercommunication and technical investigations.
(4) "Amateur radio operator" means any person who has been duly
examined and licensed by the federal communications commission or its
designee for the operation of transmitting and receiving apparatus on radio
frequencies internationally agreed upon for the use of the amateur radio
service.
(5) "Local unit of government" means a county, city or town.
55-2904. ANTENNA SUPPORT STRUCTURES -- ANTENNAS --
RESTRICTIONS ON LOCAL UNITS OF GOVERNMENT. Any rule or
ordinance of a local unit of government involving the placement, screening or
height of antennas and towers based on health, safety or aesthetic
considerations must be crafted to reasonably accommodate amateur radio
communications and to represent the minimum practicable regulation to
accomplish a legitimate purpose of the local unit of government.
III. Employ Consistent Procedures
The Local Planning Act requires that cities adopt procedures which protect
the rights of all who participate in the public hearing process. Everyone
involved with the zoning process has an expectation that ground rules will be
provided and that they will be followed. Obviously no single set of rules can
chart a course which can never be varied from, but consistency will help
prevent complaints of uneven treatment and unfair consideration of requests.
When you have a standard way of looking at these issues, the result is often
more acceptable to those who have participated. If you vary your steps, make
sure you inform participants where you intend to go. Don't make up the rules
as you go along.
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IV. Make Your Laws Match Your Ability to
Administer Them
One of the most frequent mistakes made in the planning and zoning field is for
a small jurisdiction to adopt a detailed ordinance from a large city or county.
Very often such ordinances require significant administrative resources to
administer. If the city does not have adequate staff or funding for
consultants, the task of administering the ordinance in a way that satisfies
the text of the ordinance becomes a great difficulty. Local jurisdictions
should follow the adage of not adopting any more laws than they can enforce.
Compliance with the law ought to be something that everyone charged with its
enforcement can understand and appreciate the value of. If an ordinance is
too involved and complex, the people administering it will be unable to explain
its value and the people responsible for complying with it will ignore its
contents. Small jurisdictions should not bite off more than they can chew,
and larger jurisdictions should not borrow from other states without tailoring
that which is borrowed to be consistent with Idaho law and practice. Nothing
herein is meant to discourage borrowing, merely to state that when you
borrow, make sure that you borrow something of the right size.
V. Include
The
Public in Your
Hearing Process,
Educate
and
Inform Them
at Every Turn
Most people who come to a public hearing or who receive notice of a public
hearing have never attended one before. They often do not know what to
expect. The way you communicate with them can often affect their attitude
when they show up that night or afternoon.
Start with your Notice of Public Hearing. Obviously it must contain the
basic information required by law to satisfy compliance with the Local Planning
Act. That should not be everything however, where more information would
be valuable to the potential hearing participant - provide it. You are not
obliged to limit hearing notices to one (1) page. Many jurisdictions now include
a pamphlet or brochure explaining the hearing process and telling people
receiving a notice what they must do to be effective participants in the
hearing process. If you need to give people more time to prepare for the
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hearing, send out your notices earlier than you are legally required to. Define
terms that are used in the planning and zoning process so people know what to
expect.
If you know that a matter is going to be highly controversial, you may
wish to control the flow of information into the process. If you contemplate
attaching limits to the time that people will be allowed to give oral testimony,
let them know in the notice of public hearing. Nothing can anger a hearing
participant more than preparing a fifteen (15) minute speech, only to be told
the time allotted for comment will be three (3) minutes per person. If
written materials might be submitted that are too involved or too extensive to
consider the night of your public hearing, require them to be submitted in
advance so that interested parties can examine them and so your planning
commission or governing board has time to consider them. Be sure that
information about such submittals is included in the notice of public hearing
which is both published and mailed. Including portions of your ordinance which
tell participants what they must do or what they must demonstrate to prevail
is also useful information which can help anyone with an interest in a matter
before your governing board.
Finally, treat every participant as if they have never participated in any
public hearing process such as this before. Don't assume that your audience
knows as much about these procedure as you do. Explain the steps; make
them feel welcome in plain -English terms. Accommodate those with
limitations and disabilities to participate fully in the process. If you take the
necessary steps to address the end goal of your decision making process which
is a reasoned and thoughtful determination on the merits, you can take
preliminary steps to make that more workable for everybody involved.
VI. Be Certain That Applicants Know What Is
Required Of Them
Earlier we discussed people who are invited to public hearings should know
what to expect, so, too, should applicants for permits. Many of them are new
to the permitting process. In the avenues that you chart through your
procedures may decide for them whether this is a hostile or friendly
environment. There is no reason for it to be anything other than friendly.
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The application form you provide to a permit applicant could serve two
ends. First, it should educate and inform the applicant as to what his/her
responsibilities might be and what the burden might be to demonstrate that a
permit should be granted. Mixing explanation with the blanks to be filled in
can help serve this purpose. How many times have you asked the question
when the question was posed to you on a form, "why do they need to know
that?" In fact, it's good for us to perform a similar reality check on any
forms we use. Sometimes forms are generated simply by copying someone
else's form. Telling people why we need the information (unless it's obvious) is
a good way to help explain the duties of an applicant to someone who has never
carried out that responsibility before.
The second function of the application process is to provide the base
underlying factual information that you need to make a decision. You can
either generate that factual information by having staff, or your hearing
procedures, draw it out from an applicant, or you can require that it be
submitted in conjunction with the application in written form. It does not
require that an application form be unwieldy or overly long, but it should be
complete and thorough to provide a factual foundation upon which to judge
the request. When you need to draw upon facts to reach a decision it is far
more convenient to have required the applicant to supply them in the first
instance, than to have to search through the entire record to find what you
need.
In addition to the application form, it may be helpful to produce an
applicant's brochure which explains the application process from beginning to
end. Be certain to identify those potential stumbling blocks where applicants
may fail to live up to their legal responsibilities. An application should be
complete before a public hearing notice is sent to the newspaper or placed in
the mail. Inform the applicant that it is his job to explain his request and to
make the case demonstrating why it complies with your ordinances and
comprehensive plan policies. It is not up to your city to have to construct an
application in a form that will lead to approval. Make it clear to the applicant
what determinations appear to be critical to his success. If you feel that the
application would be contrary to certain policies, let the applicant know that
he/she may face rough sledding in trying to gain approval.
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There is always a certain degree of balancing in dealing with applicants.
As a public official you should not take on the role of advocating for the
applicant's application. If you feel that it complies with the ordinances and
Comprehensive Plan policies, you should state that, but stop short of
advocating for its approval. When you believe that an application is contrary
to ordinance provisions or plan policies, let that determination be known. But,
don't stand up as if you are part of the opposition; there is usually plenty of
that around. Remember, you will know the application process better than any
applicant. Share that knowledge in a helpful way. It will come back to you in
many different ways.
VII. Have A Hearing Procedure That Works And
Protects Legal Rights
The hearing process you follow should lead to an orderly meeting which
accords to every participant the legal rights to which they are due. The
primary legal rights in a due process hearing are the respective rights to
notice and an opportunity to be heard. When a person has a right to be heard
in a planning and zoning hearing that includes the right to present and rebut
evidence. The order in which speakers are allowed to present can affect the
right to present and abut evidence in a substantial way.
Included with this memo is a suggested format for the order of things
to take place in a public hearing. The order fairly well speaks for itself; the
reasons why the order is important probably deserve some explanation.
The first speaker, after the stage has been set by the presiding
officer and the process has been explained, should be the applicant. It is the
applicant's responsibility to state his/her case and to explain why his
application should be approved. Following the applicant should be information
from staff, if there is any to be presented, and then information from those
in support of the application. The key point here is to get everyone who might
have something positive to say about an application on the record first, so
that those who may oppose the application know what they have to rebut. If
someone speaking in favor of the application speaks of ter someone opposed,
the person opposed will not know and will not be able to rebut the evidence
presented by someone favoring the proposal.
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Following all positive presentations, anyone who is opposed to the
application should be allowed to speak. During this time, the opponents are
allowed to present their own information and to rebut anything which might
have been said in favor of the proposal. Finally, the applicant should be
allowed to rebut everything that has been said in opposition. This is not an
occasion where new evidence is received, but merely where argument should
be received opposing the comments of those in opposition. Members of the
governing board or commission should try to minimize asking questions which
will prompt the introduction of new information at this phase. The earlier
that board members ask questions and get information on the table, the more
orderly the hearing process will be.
When the hearing procedure is complete, it is time to close the public
hearing and deliberate toward a decision. Depending upon the rules in your
jurisdiction (which should be followed), the process for reaching a decision
can be varied and quite different from city to city. One way which has
received good feedback from those who have tried it is to have each member
of the board or commission express his/her opinions about the matter
highlighting the most important issues and stating which way he/she might be
leaning. Out of this process should come a decision with enough facts and
reasoning to allow those who might be enlisted to help develop the final
written decision sufficient guidance to reach that end. Remember that a
reviewing court will be focusing most intensely upon the procedural
underpinnings of any decision. The legislature has directed that courts not
substitute their judgment for that of the decision makers. So, opponents to
any decision you make are likely going to target any procedural problems that
they might be able to identify. Keep this in mind as you evaluate the steps you
take toward a decision.
CONDUCTING A PUBLIC HEARING
The following is the recommended sequence of events to be followed in
conducting a public hearing:
1. Explanation of hearing procedures by Chair or Staff.
2. Presentation by Applicant (Remember, applicant bears the responsibility for
responsibility for making his/her case.) This is the time for board members to
ask their questions of the applicant.
Ten Commandments Outline (2001) - 16
3. Presentation by staff (many jurisdictions place this ahead of no.2)
4. Written correspondence. (Might want to require written testimony to be
received -20 days applicant, 7 days anyone else- before hearing - should state
time limits in notice and inform where record can be examined)
5. Testimony by those supporting the application
6. Testimony by those uncommitted on application
7. Testimony by opponents to the application
8. Rebuttal by the applicant
9. Close the hearing and initiate deliberations
10. Develop written reasoned statement supporting the decision.
Some good things to remember about hearing procedures:
• Make people aware of the record in your notices. (If people submit written
evidence in advance it can be included in the record without having to be read
at the meeting—see no. 4 above)
• If you might limit the length of testimony, notify people of that possibility in
advance. This too can be dealt with in the notice; remember you can send a
longer notice to those you are mailing notice to; it doesnt have to be the same
notice you are publishing.
• Provide for "spokespersons" if you wish.
• Members of the decision-making board with facts to offer should place them
in the record before any audience testimony.
• Once a hearing is closed, don't reopen it unless absolutely necessary and not to
receive anything which might be rebutted.
• Don't bend the rules for one, unless you change the rules for all.
Ten Commandments Outline (2001) - 17
VIII. Explain Why You Make Your becisions -
In Writing
The law requires that decisions in site-specific zoning cases must be made in
writing and must set forth the reasons to justify the decision. Courts have
designated this result as Findings of Fact and Conclusions of Law. The Local
Planning Act was amended, effective July 1, 1999, to require that written
decisions contain a reasoned statement of the facts and law relied upon in
reaching the decision. The simple command of either of these formats is that
you must explain why you made the choice you did.
Reference should be made to objective facts which set forth the
information that establishes the basis for your decision. A good place to look
at the outset is in the application materials supplied by the applicant. If you
properly design your application form your findings of fact or factual
reference can be provided in large part by the application form itself. You
should add additional facts which may come out during the hearing process
that the city council deems to be of significance. Objective facts are those
which can be measured or about which there can be no meaningful
disagreement. Examples might be that "Smith Road runs north and south" or
"the temperature today is 750". Objective facts should not be confused with
subjective determinations (typically called conclusions) which make value
judgments about the information they contain such as "Smith Road is
adequate to handle the traffic generated" or "the temperature is too hot or
too cold or just right", as the case may be.
In making an appropriate planning and zoning decision there is no magic
formula. There is no singularly right way to do it. The most important thing is
to develop a decision that represents a well reasoned whole, in which all of the
parts fit together reasonably well. Do not hesitate to use the assistance of
your staff planners and your legal advisor to develop an appropriate final
decision. Sometimes the time most well spent is that during which you allow
your advisors to develop or refine a final decision rather than struggling with
it at the end of a long public hearing at the end of a long day.
Ten Commandments Outline (2001) - 18
DEVELOPING A REASONED DECISION
1. Start with a goal in mind. Know where you want to wind up.
2. Design the beginning of the process to conform to the end you desire.
Hint: Application forms. Make applicants meet their burden; have them
supply the necessary factual foundation in a form you can use.
3. Guide participants to that goal. For most participants this will be
their first time to work with the planning and zoning process. Don't
assume anything. Make your application forms easy to understand. Help
people recognize what they must show.
4. Control the public hearing to keep irrelevant information out of the
record.
5. Take steps to try to maintain balance in the process. Have a
standard order for hearings and stick to it. When the hearing is over,
bring the proceedings to a definite close.
6. When you start with findings - sort the "wheat" from the "chaff".
Focus on issues that matter. Dont spend a great amount of decision time
on matters that are not in dispute.
7. Identify the hot issues. Before anybody makes a motion, try to get
somebody to verbalize what the center of attention is. Discuss it
informally. P&Z may have already identified it.
8. Start by identifying the key facts which appear to shape your
decision. Also express the provisions of law which will have a significant
bearing on your decision.
9. Stick to the basics in your motion. Stay on the main road. Don't
wander into matters which aren't essential to your decision.
10. Get help with your final decision. Either from a staff member, from
your prosecuting attorney or other legal counsel, or from someone with
enough time to make things work.
Ten Commandments Outline (2001) - 19
11. Provide opportunities for reconsideration of your ruling. Encourage
parties to challenge your decision before you - rather than before a
judge.
12. Explain WHY you decided the issue the way you did. Nothing
fancy, but WHY? It's the most important question you can answer.
IX. If You Make A Mistake - Fix It.
One of the biggest traps that lies in wait for decision makers in the planning
and zoning field is the procedural mistake that is discovered at some point
during the process. Very often it may seem enticing to merely determine that
the mistake was a small one and that it simply doesn't matter. Or, as we
lawyers are prone to do, to try to develop a justification that explains away or
excuses the error. Unless you can feel absolutely confident that the error is
truly inconsequential and that it would not make a difference in the outcome if
the matter were submitted for judicial review, stop at that point and fix
the error. If the problem was a public hearing with inadequate notice or the
failure of compliance with some step set forth in your ordinance, take steps
back and correct the error.
No doubt, the applicant or the other offected parties will be upset by
having to retrace some steps. If you do not take that course of action
however, you may get to take those steps after you have spent hundreds or
thousands of dollars on legal fees and have prolonged the agony for everybody
involved, by months if not years. There is always time to do it right. Make
sure you continue to monitor your own performance and speak with your legal
counsel about any errors that might be discovered along the way. Often,
opponents of an application will "help" you by pointing them out. Rather than
become upset with that activity, take it to heart. Do the job right the first
time through, rather than after a reviewing court tells you what needs to be
corrected. It will save you major costs and headaches further down the road.
Ten Commandments Outline (2001) - 20
X. Comply With Other Statutes and
Legal Requirements
The planning and zoning process seems like a world of its own sometimes. It
uses a special language and follows specified procedures that are relatively
involved and demanding. But the participants in the planning and zoning
process need to recognize is that there are other legal requirements besides
those contained in the Local Planning Act which must be followed. Among
those are at least the following:
A. The Public Records Statute - Information in the planning and zoning
process is generally available for public inspection during all business hours.
The Public Record Statute is set forth in Title 9, Chapter 3 of the Idaho
Code, and it explains the general policy of the state with regard to records
and the exceptions from disclosure which are set forth therein. If
jurisdictions do not comply with the open record statutes, it can upset
people who have an interest in the planning and zoning procedure and cause
them to become more interested in bringing a challenge to any decision
which is made.
B. The Open Meeting Law - Idaho's Open Meeting Law establishes
requirements for contents of agendas and notice of meetings. It is
imperative that agendas for planning and zoning commissions detail what
the commission will be considering, just as it is for city boards when they
meet. There is no such thing as a "workshop" which is not subject to the
open meeting low. Likewise, when standing subcommittees are appointed,
even if they involve people who are not members of the city board or
planning and zoning commission, they too, must comply with open meeting
law requirements. That includes having an agenda and meeting notice
posted appropriately, keeping minutes of the activities of the committee,
and meeting in a facility which does not practice discrimination. An outline
of open meeting requirements is set forth in the following paragraphs and
provides some general guidance in compliance with that statute. Additional
information is available from the office of the Attorney General.
Ten Commandments Outline (2001) - 21
OPEN MEETING LAW
FORMULATION OF PUBLIC POLICY IS PUBLIC BUSINESS AND SHALL
NOT BE CONDUCTED IN SECRET Idaho Code X67-2340
The Rules:
ALL MEETINGS OF A GOVERNING BODY SHALL BE OPEN TO THE PUBLIC
(UNLESS EXCEPTION ALLOWS).
NO DECISION SHALL BE MADE BY SECRET BALLOT.
NO MEETING SHALL BE HELD WHERE DISCRIMINATION IS PRACTICED
ON THE BASIS OF RACE, CREED, COLOR, SEX, AGE, OR NATIONAL
ORIGIN.
befiniti®ns
Governing Body of a Public Agency - body with authority to make decisions for
or recommendations to a public agency regarding any matter. Also applies to
subagency (committees, ad hoc advisory groups, etc.) which might make
recommendations. Does not apply to staff meetings. Would apply to comp plan
committee, sign advisory committee, any other defined group activity by advisory
panels.
Meeting - convening to make a decision or deliberate toward a decision.
Decision - any determination, action vote or final decision on a motion, proposal,
resolution, order, ordinance or measure upon which a vote of the governing board
is required - quorum must be present. Quorum - enough there to conduct
business.
Deliberation - the receipt or exchange of information or opinion relating to a
decision. - not impromptu or informal discussions not dealing with matter before
the governing body.
Ten Commandments Outline (2001) - 22
Open Meeting Requirements
Notice - 5 calendar day notice unless otherwise provided. Post notice at door or
main office of public entity. Need not publish in newspaper. Can give notice of
meetings once a year if meet on regular interval. Special meetings/executive
session - 24 hour notice unless emergency
Agenda - Must be posted 48 hours in advance - can add agenda items if do so in
good faith. What about those who show up to discuss a concern? Legislature
didn't address - consider responsiveness issues and whether others might be
adversely affected by action. AG advises inaction until properly noticed meeting.
Records - Must maintain written minutes. Minutes must contain members
present, all motions, orders, resolutions, ordinances proposed and their
disposition, and results of all votes, roll call if requested.
Executive Session - allowed for stated reasons. Requires statement of basis, 2/3
vote, roll call. reasons - hiring all but elected official; evaluate, discipline,
dismissal, hear complaints against public official; labor negotiations; consider
exempt records; prelim trade negotiations with other government as competitor,
advise legal representatives when pending litigation.
No final decision may be made in executive session.
Penalties for Violation
Noncompliance with the Open Meeting Law will have the following possible
consequences:
1. Action will be null and void.
2. Knowing violation can bring a $150 fine for first violation, $300 fine for
subsequent violations.
3. Fines are to be paid by the individual - not public entity.
4. Questions about defense under the Tort Claims Act - course and scope of
employment.
Ten Commandments Outline (2001) - 23
Other public service concerns:
Conflict of Interest (Ethics in Government) -
*Parliamentary Procedure and By -Laws
*Making Sustainable Decisions and Motions
*Differences between Motions, Resolutions, and Ordinances.
C. Other Constitutional and Statutory Provisions - The planning and zoning
process invokes the rights of individuals as it affects their use of private
property. This involves constitutional questions and many statutory issues.
Idaho law requires that decision makers in the planning and zoning process
consider whether or not their actions would constitute a taking of private
property. Very often this matter is not addressed in context of events,
but is still an issue which must be considered by the decision makers. For
more information on this subject, consult with your legal advisor or with
the office of the Attorney General.
These "Ten Commandments" are merely an outline of important issues
of which you need to be aware to effectively conduct your planning and zoning
activities. The entire planning and zoning process has become the subject of
increased legal scrutiny and more numerous lawsuits. A practical look at the
Idaho landscape shows that the ability of any of us to swing our arms without
contacting the face of our neighbor has been diminished as our population has
grown and development has occurred in new parts of this state. Local officials
need to be aware of the obligations they assume in carrying out planning and
zoning procedures so individual rights and the public good are properly
balanced. Staying current with legal trends and sound practices is the best
insurance that anyone can provide.
Ten Commandments Outline (2001) - 24
Hot Topics
Zoning to Regulate Animals - Consider using a general health and safety
ordinance.
Planning and Zoning on Annexation - Timing is important.
67-6525. Plan and zoning ordinance changes upon annexation of
unincorporated area.
Prior to annexation of an unincorporated area, a city council shall request
and receive a recommendation from the planning and zoning commission, or the
planning commission and the zoning commission, on the proposed plan and zoning
ordinance changes for the unincorporated area. Each commission and the city
council shall follow the notice and hearing procedures provided in section 67-
6509, Idaho Code. Concurrently or immediately following the adoption of an
ordinance of annexation, the city council shall amend the plan and zoning
ordinance. (1975)
Area of City Impact - What's Legal and What Works - Final say often
belongs to the county commissioners.
67-6526. Areas of city impact - Negotiation procedure.
(a) The governing board of each county and each city therein shall,
adopt by ordinance following the notice and hearing procedures provided in
section 67-6509, Idaho Code, a map identifying an area of city impact
within the unincorporated area of the county. A separate ordinance
providing for application of plans and ordinances for the area of city impact
shall be adopted. Subject to the provisions of section 50-222, Idaho
Code, an area of city impact must be established before a city may annex
adjacent territory. This separate ordinance shall provide for one (1) of the
following:
(1) Application of the city plan and ordinances adopted under
this chapter to the area of city impact; or
(2) Application of the county plan and ordinances adopted under
this chapter to the area of city impact; or
(3) Application of any mutually agreed upon plan and ordinances
adopted under this chapter to the area of city impact.
Ten Commandments Outline (2001) - 25
Areas of city impact, together with plan and ordinance requirements,
may cross county boundaries by agreement of the city and county concerned
if the city is within three (3) miles of the adjoining county.
(b) If the requirements of section 67-6526(a), Idaho Code, are not
met by January 1, 2000, the county commissioners for the county
concerned, together with three (3) elected city officials designated by the
mayor of the city and confirmed by the council, shall, within thirty (30)
days after the city officials have been confirmed by the council, select
three (3) city or county residents. These nine (9) persons shall, by
majority vote, recommend to the city and county governing boards an area
of city impact together with plan and ordinance requirements. The
recommendations shall be submitted to the governing boards within one
hundred eighty (180) days after the selection of the three (3) at -large
members and shall be acted upon by the governing boards within sixty (60)
days of receipt. If the city or county fails to enact ordinances providing
for an area of city impact, plan, and ordinance requirements, either the
city or county may seek a declaratory judgment from the district court
identifying the area of city impact, and plan and ordinance requirements.
In defining an area of city impact, the following factors shall be
considered:
(1) trade area;
(2) geographic factors; and
(3) areas that can reasonable be expected to be annexed to
the city in the future.
(c) If areas of city impact overlap, the cities involved shall negotiate
boundary adjustments to be recommended to the respective city councils.
If the cities cannot reach agreement, the board of county commissioners
shall, upon a request from either city, within thirty (30) days, recommend
adjustments to the areas of city impact which shall be adopted by
ordinance by the cities following the notice and hearing procedures provided
in section 67-6509, Idaho Code. If any city objects to the
recommendation of the board of county commissioners, the county shall
conduct an election, subject to the provisions of section 34-106, Idaho
Code, and establish polling places for the purpose of submitting to the
qualified electors residing in the overlapping impact area, the question of
which area of city impact the electors wish to reside. The results of the
election shall be conclusive and binding, and no further proceedings shall be
entertained by the board of county commissioners, and the decision shall
Ten Commandments Outline (2001) - 26
not be appealable by either city involved, The clerk of the board of county
commissioners shall by abstract of the results of the election, certify that
fact, record the same and transmit copies of the original abstract of the
result of the election to the clerk of the involved cities.
(d) Areas of city impact, plan, and ordinance requirements shall
remain fixed until both governing boards agree to renegotiate. In the
event the city and county cannot agree, the judicial review process of
subsection (b) shall apply. Renegotiations shall begin within thirty (30) days
after written request by the city or county and shall follow the procedures
for original negotiation provided in this section.
(e) Prior to negotiation or renegotiation of areas of city impact, plan,
and ordinance requirements, the governing boards shall submit the questions
to the planning, zoning, or planning and zoning commission for
recommendation. Each commission shall have a reasonable time fixed by
the governing board to make its recommendations to the governing board.
(f) This section shall not preclude growth and development in areas of
any county within the state of Idaho which are not within the areas of city
impact provided for herein.
(g) If the area of impact has been delimited pursuant to the
provisions of subsection (a)(1) of this section, persons living within the
delimited area of impact shall be entitled to representation on the planning,
zoning, or the planning and zoning commission of the city of impact. Such
representation shall as nearly as possible reflect the proportion of
population living within the city as opposed to the population living within the
areas of impact for that city. To achieve such proportional representation,
membership of the planning, zoning or planning and zoning commission, may
exceed twelve (12) persons, notwithstanding the provisions of subsection (a)
of section 67-6504, Idaho Code. In instances where a city has combined
either or both of its planning and zoning functions with the county,
representation on the resulting joint planning, zoning or planning and zoning
commission shall as nearly as possible reflect the proportion of population
living within the impacted city, the area of city impact outside the city, and
the remaining unincorporated area of the county. Membership on such a
joint planning, zoning or planning and zoning commission may exceed twelve
(12) persons, notwithstanding the provisions of subsection (a) of section 67-
6504, Idaho Code. (1999)
Ten Commandments Outline (2001) - 27
Site Visits - Be careful about notice.
Zoning to Regulate the City's Uses - Avoid tying yourself in knots.
Conflicts of Interest/Participation - Know the rules to avoid conflicts.
67-6506. Conflict of interest prohibited.
A governing board creating a planning, zoning, or planning and zoning
commission, or joint commission shall provide that the area and interests
within its jurisdiction are broadly represented on the commission. A
member or employee of a governing board, commission, or joint commission
shall not participate in any proceeding or action when the member or
employee or his employer, business partner, business associate, or any
person related to him by affinity or consanguinity within the second degree
has an economic interest in the procedure or action. Any actual or
potential interest in any proceeding shall be disclosed at or before any
meeting at which the action is being heard or considered. For purposes of
this section the term "participation" means engaging in activities which
constitute deliberations pursuant to the open meeting act. No member of a
governing board or a planning and zoning commission with a conflict of
interest shall participate in any aspect of the decision-making process
concerning a matter involving the conflict of interest. A member with a
conflict of interest shall not be prohibited from testifying at, or presenting
evidence to, a public hearing or similar public process after acknowledging
nonparticipation in the matter due to a conflict of interest. A knowing
violation of this section shall be a misdemeanor. (1999)
Durability of Special Uses - How long do they last?
Ten Commandments Outline (2001) - 28