We were alerted Tuesday to a stunning new draft “Emergency Ordinance” scheduled to be introduced by the Kootenai County Commissioners which would allow developers to escape their obligations under existing land use approvals and financial guarantees for up to two years by simply sending a written request.
The draft bill (pdf) says that the Board of County Commissioners may consider such a request at any regular meeting. But the legislation does not provide any standard for a decision by the Board, nor does the legislation require any findings of fact or law prior to granting an approval. Indeed, other than a “written request” that contains “reasons why good cause exists (minimally including an economic hardship),” these requests may evidently be granted by the Board on a whim.
On the substance, the legislation is probably illegal, but it is certainly bad policy. If a prior land use decision has been through the hearing examiner process, the Board approval process, and has been issued a formal binding decision, the Board cannot revisit the prior final decision without similarly formal processes and hearings. Some of these deadlines and financial guarantees were negotiated in detail and agreed-to by more than just the landowner or developer. It would be patently unfair to unilaterally relieve one party of its obligations. Besides, there is an extraordinary moral hazard here – these landowners and developers chose to take on real estate development risks knowingly and willingly. These are not naïve actors in our local economy. They are obligated under formal binding public orders, after significant public process. Relieving them of these obligations will encourage similar risk-taking in similar economic environments leading to more bailouts.
Moreover, the timing and “emergency” nature of this legislation is highly suspect. This economic emergency has been ongoing for nearly two years. Why would the nature of the economy get so severe as to require fast-tracked “emergency” legislation to be unveiled exactly one week before a hotly contested primary election? We wonder.