HomeMy WebLinkAboutCOMMISSIONER TRAINING - NOTES 2.17.22Local Land Use and Planning Act
(LLUPA)
Idaho Land Use Handbook by Givens Pursley, LLP very thorough, highly recommend for more
in-depth analysis.
LLUPA (What is it?)
• Local Land Use Planning Act
o Regulation on land development
o P&Z, Subdivision Regulation, Annexation
o Designed to make more attractive cities and enhance property values.
• Sim City (watch where you put the power plant!)
• Violation of my constitutional right to own land and raise possums?
o Village of Euclid v. Amder Realty Co., 272 US 365 (1926) — government has right
to regulate land use.
o Power comes from Idaho Constitution, Article XII, § 2.
Local police regulations authorized. — Any county or
incorporated city or town may make and enforce, within its
limits, all such local police, sanitary and other regulations as
are not in conflict with its charter or with the general laws.
• Examples of Restrictions:
o Building height
o Number of units
o Parking
o Noise
o Open space
o # of ligers permitted on a one acre parcel
• Authority for cities and counties to legislate comes from Idaho Constitution or statute.
Dillon's Rule—cities and counties can ONLY do what the constitution and
legislature allow.
■ Justice John Forrest Dillon (Iowa Supreme Court), recognized cities and
counties owe their existence to the legislature and constitution, so these
cities and counties cannot exceed the authority the legislature grants them.
o Home Rule — Cities and counties can pass rules as they see fit.
o Idaho is A HYBRID
■ Can pass ordinances so long as they do not conflict with the statue or the
constitution.
■ If statutes and constitution do not prohibit it, the city or county can limit—
until they inevitably get sued and find out they missed something.
• Can't someone just expatriate themselves from the United States of America and declare
themselves their own sovereign nation to get out of LLUPA compliance?
o NOPE! See Bissett v. State, 111 Idaho 865, 727 P. 2d 1293 (Ct. App. 1986);
referencing United States v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed. 2d 127
(1982)
LLUPA (Where is it?)
• I.C. §§ 67-6501 – 6538.
• City and county actions cannot violate LLUPA (Gumprecht, 104 Idaho at 617)
LLUPA (How does it work?)
• Enumerated planning and zoning powers: (Land Use Handbook)
o Prepare and update a comprehensive plan for the area under its jurisdiction.
o Adopt a zoning ordinance. I.C. § 67-6511.
o Issue special use (aka conditional use) permits. I.C. § 67-6512.
o Issue permits for planned unit developments. I.C. § 67-6515.
o Grant variances from zoning criteria. I.C. § 67-6516.
o Recommend a "future acquisitions map" for roads, schools, airports, parks and
lands for other public purposes. I.C. § 67-6517.
o Recommend areas for transferable development rights ("TDRs"). I.C. § 67-
6515A.
• Mandatory Planning Duties (Land Use Handbook)
o Adopt Comprehensive Plan I.C. §§ 67-6507-67-6509
o Adopt ordinance adopting 1 or more zoning districts. I.C. § 67-6511
o Adopt ordinance governing approval of subdivisions. I.C. § 67-6513
o Adopt ordinance regulating granting of variance I.C. § 67-6516
o Adopt ordinance for granting of variance. I.C. § 67-6516
o Issue written decisions in P&Z matters in findings of fact and Conclusions of law.
I.C. § 67-6535(b)
o Create verbatim, transcribeable record of all administrative proceedings. I.C. §
67-6536.
• Planning & Zoning Commission not required, actually a decision made by governing
body. I.C. § 67-6504
o Can actually have more than one P&Z commission.
o Can also be joint with other counties. I.C. § 67-6505
o Adopting Ordinances however, reserved to governing body.
o What requires an ordinance?
■ Annexation
■ Zoning or re -zoning
■ Adoption of development agreements
• Adoption of future acquisitions map
■ Adoption of development standards.
Comprehensive Plans
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,
compatibility of land uses, 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.
• Lu,luig VLuu,au..v. ana ainenamems must be in "accordance" with comprehensive plan.
I.C. § 67-6511
• Evans v. Teton Cnty., 139 Idaho 71, 76, 73 P.3d 84, 89 (2003) (citations omitted).
A comprehensive plan is not a legally controlling zoning law, it serves as a
guide to local government agencies charged with making zoning decisions.
The `in accordance with' language of I.C. § 67-6511 does not require zoning
decisions strictly conform to the land use designations of the comprehensive
plan. However, a board of commissioners cannot ignore their
comprehensive plan when adopting or amending zoning ordinances.
• "In Bone, a unanimous Court decided ... that `in accordance' does not mean that a
zoning ordinance must be exactly as the Comprehensive Plan shows it to be." Love H,
108 Idaho at 730, 701 P.2d at 1295.
0 Idaho Land Use Handbook 2015.
"In Bone, the Idaho Supreme Court rejected a developer's argument that he
was entitled to a rezone (an upzone) because it was consistent with the
comprehensive plan. The property owner had appealed the City of
Lewiston's denial of his request to rezone property from a residential zone
to a commercial zone. The land use map in the comprehensive plan depicted
the property to be suitable for commercial use. The Idaho Supreme Court
held that the comprehensive plan map designation did not mandate that the
city council approve the request to approve the commercial zoning of the
property. Rather, the decision of whether the requested zoning designation
was in accordance with the comprehensive plan was a case-by-case factual
determination. The Court remanded the matter to the city council to adopt
findings of fact and conclusions of law, reserving the right to the property
owner to appeal if those findings were insufficient to support the decision."
• Giltner I, 145 Idaho at 633, 181 P.3d at 1241
"In fact, there is a substantial difference between planning and zoning.
Planning is long range; zoning is immediate. Planning is general; zoning is
specific. Planning involves political processes; zoning is a legislative
function and an exercise of the police power. Planning is generally dynamic
while zoning is more or less static. Planning often involves frequent
changes; zoning designations should not. Planning has a speculative impact
upon property values, while zoning may actually constitute a valuable
property right.
"It seems clear, therefore, that while zoning designations should generally
follow and be consistent with the long-range designations established in the
Comprehensive Plan, there is no requirement that zoning immediately
conform to the Plan. The Plan is a statement of long-range public intent;
zoning is an exercise of power which, in the long run, should be consistent
with that intent. Planning is a determination of public policy, and zoning, to
be a legitimate exercise of police power should be in furtherance of that
policy.
• Special use permits cannot conflict with the comprehensive plan. I.C. § 67-6512(a).
o Cannot conflict with the plan, but do not need to fulfill every aspirational goal of
the plan.
o Gravel pit.
• Contents of Comprehensive Plan: (1) property rights, (2) population, (3) school facilities,
(4) economic development, (5) land use, (6) natural resources, (7) hazardous areas, (8)
public services and utilities, (9) transportation, (10) recreation, (11) special areas or
sights, (12) housing, (13) community design, and (14) implementation.
• Adoption and amendment of Comprehensive Plan covered by I.C. § 67-6509.
4
Zoning Ordinances
• Remember, need a comprehensive plan I"
• I.C. § 67-6511(1)(a)
Within a zoning district, the governing board shall where appropriate
establish standards to regulate and restrict the height, number of stories,
size, construction, reconstruction, alteration, repair or use of buildings
and structures; percentage of lot occupancy, size of courts, yards, and
open spaces; density of population; and the location and use of buildings
and structures. All standards shall be uniform for each class or kind of
buildings throughout each district, but the standards in one (1) district
may differ from those in another district.
• Passage and Amendment (I.C. §§ 67-6509 and 67-6511)
o PROCESS:
■ Publication & Mailing Notice (Same for passage and amendment)
• P&Z publish notice (time, place, and summary) 15 days before
hearing
• P&Z make notice available to other papers and media.
• P&Z send notice to all political subdivisions (schools and airports)
in jurisdiction
• P&Z mail notice to any affected landowner within 300 feet.
■ Hearing. P&Z evaluates request at hearing with evidence and
comprehensive plan and makes recommendation to governing body.
o WARNING: Watch out for ordinance or conditional rezoning resulting in
regulatory taking analysis. I.C. §§ 67-2511(2)(a) and 67-8003.
■ "Grandfathered" — every landowner's favorite term beside "quick claim"
deed.
• Does passage or amendment have a binding effect on
improvements and properties already in existence?
• Special/Conditional Use Permits
o SCOPE:
■ Allowing use not outright allowed within a zone, but may be granted if
conditions in ordinance are met. I.C. § 67-6512(a)
■ Not a free pass! Must still comply with ordinance.
o PROCESS: Same notification and hearing process as amendment to ordinance.
• Approval is discretionary: "A special use permit may be granted to an
applicant if..." I.C. § 67-6512(a)
■ Can consider the "social, economic, fiscal, and environmental effects of
the proposed special use." I.C. § 67-6512(e)
■ Can impose certain conditions on these permits: (I.C. § 67-6512(d))
• (1) Minimizing adverse impact on other development;
• (2) Controlling the sequence and timing of development;
• (3) Controlling the duration of development;
• (4) Assuring that development is properly maintained;
• (5) Designating the exact location and nature of development;
• (6) Requiring the provision for on-site or off-site public facilities
or services;
• (7) Requiring more restrictive standards than those generally
required in an ordinance;
• (8) Requiring mitigation of effects of the proposed development
upon service delivery by any political subdivision, including
school districts, providing services within the planning
jurisdiction.
■ Conditions can be modified. Chambers v. Kootenai Cnty. Bd. of
Comm'rs, 125 Idaho 115, 867 P.2d 989 (1994)
o DENIAL: Subject to regulatory takings analysis (See below)
• Variances: I.C. § 67-6516
o "A variance is a modification of the bulk and placement requirements of the
ordinance as to lot size, lot coverage, width, depth, front yard, rear yard, setbacks,
parking space, height of buildings, or other ordinance provision affecting the size
or shape of a structure or the placement of the structure upon lots, or the size of
lots."
o May be granted upon showing of undue hardship and not in conflict with public
interest. I.C. § 67-6516.
o PROCESS:
■ Notice to all adjoining parcels and affected airport manager.
• REVIEW: Special Use Permit v. Variance
Annexation
0 I.C. § 67-6525 and I.C. § 50-222
• Cities have no authority outside of their municipal boundaries.
• Impact Area – outside but next to city boundaries
o Map must be adopted by ordinance of BOTH city AND county before annexation
can occur. I.C. § 67-6526(1).
o Same notice and hearing process as zoning ordinances and amendments. I.C. §
67-6526(1)
• Annexation can occur without property owners' consent and without agreement of the
county. Power is statutory. I.C. § 50-222(1).
• Annexed lands must be re -zoned
Standing to File Suit
• "Any person aggrieved by final agency action ... is entitled to judicial review." I.C. 67-
5270(2)
• Must be an "affected person" – "one having an interest in real property which may be
adversely affected by the issuance or denial of a permit authorizing the development."
I.C. § 67-6521(1)(a).
• Lujan v. Defenders of Wildlife ("Lujan v. Defenders"), 504 U.S. 555, 560 (1992)
Over the years, our cases have established that the irreducible
constitutional minimum of standing contains three elements. First,
the plaintiff must have suffered an "iniury in fact"—an invasion of
a legally protected interest which is (a) concrete and particularized,
and (b) "actual or imminent, not `conjectural' or `hypothetical."'
Second, there must be a causal connection ... Third, it must be
"likely," as opposed to "speculative," that the injury will be
"redressed by a favorable decision."
• Selkirk, 128 Idaho at 834, 919 P.2d at 1035. (Citizen's group opposes timber sales).
The affidavits indicate the members use the area for hiking and
berry -picking and that such use is occasional at best, with the most
regular contact being one member who visits the area two weeks out
of the year. We do not believe that the members' occasional use of
the area for recreational or aesthetic enjoyment creates a
Particularized injury such that SPBA's members have a "distinct
palpable injury" not shared in substantially equal measure by all or
a large class of citizens.
• Evans v. Teton Cnty., 139 Idaho 71, 75, 73 P.3d 84, 88 (2003).
Proximity is a very important factor.... However, this Court will
not look to a predetermined distance in deciding whether a property
owner has, or does not have, standing to seek judicial review of a
LLUPA decision.